TO: NORTH DAKOTA DEPARTMENT OF HEALTH, NORTH DAKOTA ATTORNEY GENERAL WAYNE STENEHJEM, AND MERIDIAN ENERGY GROUP, INC.

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1 STATE OF NORTH DAKOTA COUNTY OF STARK IN DISTRICT COURT SOUTHWEST JUDICIAL DISTRICT ) National Parks Conservation Association, ) Environmental Law & Policy Center, ) Civil No. and Dakota Resource Council, ) ) Permit No. PTC17020 Appellants, ) ) v. ) NOTICE OF APPEAL AND ) SPECIFICATIONS OF ERROR North Dakota Department of Health and ) Meridian Energy Group, Inc., ) ) Appellees. ) ) TO: NORTH DAKOTA DEPARTMENT OF HEALTH, NORTH DAKOTA ATTORNEY GENERAL WAYNE STENEHJEM, AND MERIDIAN ENERGY GROUP, INC. PLEASE TAKE NOTICE that the Appellants National Parks Conservation Association (NPCA), Environmental Law & Policy Center (ELPC), and Dakota Resource Council (DRC) (collectively, Appellants) hereby give notice of their appeal from the June 12, 2018 final decision of the North Dakota Department of Health (NDDOH) to issue an Air Pollution Control Permit to Construct (Permit) to Meridian Energy Group, Inc. for its proposed Davis Refinery in Billings County, west of Belfield. In support of their appeal, Appellants state the following: JURISDICTION AND VENUE 1. Jurisdiction and venue lie with this Court under N.D.C.C and N.D.C.C , which provide that any aggrieved person who participated or provided comments during the hearing process may appeal from a final decision to issue an Air Quality Permit in the district court of the county in which a hearing or a part thereof was held. NDDOH held a public hearing on the permit at issue in Stark County on January 17, Appellants 1

2 filed written comments on the proposed Permit to the North Dakota Department of Health on January 26, PARTIES 2. Appellant NPCA is an independent and nonpartisan non-profit organization that works to strengthen and protect the country s most iconic and inspirational places for present and future generations. NPCA was founded in 1919 and has 1.3 million members and supporters and 27 locations nationwide. NPCA has 2177 members and supporters in North Dakota, including 748 active members who live in the State and use and enjoy the Theodore Roosevelt National Park and the surrounding region. NPCA members health, recreation and aesthetic interests would be particularly aggrieved by the increased emissions from the Meridian Davis refinery projected to impact the air quality at Theodore Roosevelet National Park. 3. Appellant ELPC is a non-profit Midwest-based advocacy organization with an office and staff in Jamestown, North Dakota. ELPC has long been involved in efforts to promote responsible energy development, and to protect public health and special places like the Theodore Roosevelt National Park. ELPC has members who use and enjoy the Theodore Roosevelt National Park and surrounding region, who intend to do so in the future, and who would be particularly aggrieved by a reduction in air quality from a new oil refinery in the area. 4. Appellant DRC is a North Dakota nonprofit corporation with its principal place of business located in Bismarck, ND. Formed in 1978, DRC brings together people across North Dakota to organize around common goals of a sustainable economy and use of resources in North Dakota. One of DRC s enduring issues since its founding has been advocacy to minimize the negative impacts of oil and gas development by ensuring compliance with applicable laws. DRC is a member-driven organization with over 1,000 North Dakota members 2

3 in good standing. DRC members work, live, and recreate in the immediate vicinity of and adjacent to the the proposed Davis Refinery, and they fear the significant health and aesthetic impacts of NDDOH s decision to issue the Davis Refinery a minor source permit with the deficiencies outlined herein. 5. Appellee NDDOH is an executive agency of the state of North Dakota charged with administering North Dakota s air pollution control program, as well as other environmental and health statutes and regulations. 6. Appellee Meridian Energy Group, Inc. is a privately held South Dakota corporation in the business of developing oil refineries, headquartered at 2070 Business Center Dr. Suite 160, Irvine, CA, SPECIFICATIONS OF ERROR 7. Meridian has proposed to construct a new 55,000 barrel-per-day oil refinery in Billings County, to be called the Davis Refinery. The Davis Refinery would be the first significant new oil refinery built in the United States in over forty years. The proposed location is less than three miles from Theodore Roosevelt National Park, a Class 1 area with the highest level of air quality protection. Under the section 162 of the federal Clean Air Act, all international parks, national wilderness areas and national memorial parks that exceed 5,000 acres, and of national parks that exceed 6,000 acres are designated as mandatory federal Class I areas in order to preserve, protect and enhance air quality. 8. Under both the federal Clean Air Act and North Dakota law, Meridian may not begin construction of its proposed Davis Refinery until it receives an air quality permit from the North Dakota Department of Health that meets the requirements of the federal Clean Air Act and the law in North Dakota that implements the Clean Air Act. N.D.C.C (1). 3

4 9. The Permit NDDOH issued on June 12, 2018 does not meet the requirements of the federal Clean Air Act and North Dakota s implementation of the Clean Air Act, primarily because NDDOH improperly classified the proposed refinery as a minor rather than as a major stationary source of air pollution. Under the federal and state clean air acts, a facility is a major stationary source of air pollution if it has the potential to emit (PTE) air pollutants above certain levels: a. Under the Prevention of Significant Deterioration (PSD) program, 100 tons per year for criteria air pollutants and precursors to criteria air pollutants like volatile organic compounds (VOCs), carbon monoxide (CO), sulfur dioxide (SO2), nitrogen oxides (NOx), particulate matter (PM), and lead (Pb), 40 C.F.R (b)(1)(i)(a); or b. Under the National Emission Standards for Hazardous Air Pollutants (NESHAPs) program, 10 tons per year of any hazardous air pollutant (HAP), like benzene, hexane, or toluene, known or suspected to cause cancer or other serious health effects, such as reproductive effects or birth defects, or adverse environmental effects, or 25 tons per year of all HAPs combined. 40 C.F.R Potential to emit means the maximum capacity of a stationary source to emit a pollutant under the source s physical and operational design. 40 C.F.R (b)(4). 11. The Davis Refinery has the potential to emit criteria air pollutants and HAPs above major source levels. 12. Under the PSD and NESHAPs air permit programs, as a major source, Meridian would need to meet several requirements, including but not limited to the following: 4

5 a. A demonstration that new emissions from the source will not exceed the PSD increment, the amount of pollution over a site-specific baseline amount that can be lawfully permitted, 40 C.F.R (k)(1); N.D.A.C ; b. A top-down evaluation of alternative pollution control measures, to arrive at the Best Available Control Technology (BACT) to keep pollution levels for criteria pollutants below limits, 40 C.F.R (j)(2); N.D.A.C ; and c. An evaluation of appropriate emission standards for hazardous air pollutants (HAPs) based on Maximum Achievable Control Technology (MACT). 40 C.F.R (c)(2); N.D.A.C and To avoid those PSD permit requirements, however, Meridian agreed to emission limits on criteria and precursor pollutants below the threshold levels for major sources 58 tons per year of VOCs, 80 tons per year of CO, 40 tons per year of NOx, and 13 tons per year of SO2 to qualify as a synthetic minor source. 14. Likewise, to avoid formal application of requirements for HAPs to this refinery, Meridian also stated in its application that it would limit emissions of HAPs below major source levels. However, NDDOH included no permit conditions to limit facility-wide HAP emissions. 15. To qualify as a synthetic minor source, however, the proposed emission limits must be federally enforceable, 40 C.F.R (b)(4), that is, there must be legally and practically enforceable mechanisms in place to make certain that the emission limits remain below the relevant levels. U.S. EPA, Limiting Potential to Emit in New Soruce Permitting (June 13, 1989), available at To be practically enforceable, the permit provisions must specify (1) a technically accurate limitation and the portions of the source subject to the limitation; (2) the 5

6 time period for the limitation (hourly, daily, monthly, and annual limits such as rolling annual limits); and (3) the method to determine compliance including appropriate monitoring, recordkeeping, and reporting. U.S. EPA, Limiting Potential to Emit in New Soruce Permitting (June 13, 1989), available at The permit issued by NDDOH does not meet those requirements. 17. The permit relies on vendor guarantees that equipment at the Davis Refinery will comply with emission limits. 18. The predicted potential to emit of VOCs in the permit is underestimated and unenforceable, both because the limits are not achievable in practice and because testing and monitoring is insufficient to ensure that the Davis Refinery will comply with these limits. Additionally, actual VOC emissions will exceed the major source threshold of 100 tons per year, based on an analysis of recent field studies and emissions data from actual refineries demonstrating that the generic emission estimates in the Davis permit significantly underestimate the potential to emit VOCs. 19. Compliance testing and monitoring for other criteria pollutants are also inadequate to assure compliance. 20. The permit does not require testing of startup, shutdown, and maintenance (SSM) emissions, which are typically higher than emissions during normal operations, omission of pollutants released during SSM will result in potentially significant underestimation of actual emission levels. 21. The permit underestimates the potential to emit HAPs, including benzene. Emission calculations using actual field measurements at similar facilities show that HAP 6

7 emissions predicted at the Davis refinery are unrealistic and actual emissions will exceed the 10 tons per year/25 tons per year major source threshold. 22. The permit contains no caps or annual emission restrictions on the main sources of HAPs. 23. Appellants presented all of the above stated concerns to NDDOH during the comment process. In several instances, NDDOH either did not respond at all, or provided only conclusory, inadequate responses, in violation of N.D.C.C (7)(7). 24. For all of the above stated reasons and the reasons enumerated in the comments to NDDOH, the synthetic minor permit NDDOH issued to Meridian is not in accordance with the law, N.D.C.C (1), the findings of fact made by the agency are not supported by a preponderance of the evidence, id. at (5), and the conclusions of law and order of the agency are not supported by the findings of fact, id. at (6). 25. WHEREFORE the appellants request that this Court reverse the NDDOH s permit, remand the case to NDDOH for further proceedings, award appellants costs and attorney fees pursuant to N.D.C.C , and grant any and all other relief to which they may be entitled. Dated: July 12,2018 7

8 Respectfully submitted, BRAATEN LAW FIRM /s/derrick Braaten Derrick Braaten (ND 06394) JJ England (ND 08135) 109 North 4th St., Suite 100 Bismarck, ND Tel Fax Attorneys for the Dakota Resource Council and associate attorney pursuant to ND Rules of Admission to Practice Rule 3(A)(1)(a)(1) ENVIRONMENTAL LAW & POLICY CENTER /s/scott Strand Scott Strand Senior Attorney 60 South Sixth St., Suite 2800 Minneapolis, MN (612) Motion for Admission Pro Hac Vice Pending Rachel Granneman Staff Attorney 35 East Wacker Drive, Suite 1600 Chicago, IL (312) Motion for Admission Pro Hac Vice Pending Attorneys for the National Parks Conservation Association and Environmental Law & Policy Center 8