BISMARCK, N.D. - The North Dakota Supreme Court recently ruled that Dunn County does not have the authority through its zoning regulations to veto the state Industrial Commission's siting of an oil and gas waste treating plants.
According to court documents, the case goes back to August 2013, when Environmental Driven Solutions LLC received a permit from the Industrial Commission for a waste oil treating plant in Dunn County. The permit allowed EDS "to recycle and treat waste crude oil obtained from drilling operations ... and other waste crude oil related to oil and gas exploration and production."
The permit also noted, "treating plants must comply with all applicable local, state, and federal laws and regulations." Some area landowners objected to EDS's application, but representatives of the county did not object or appear at the hearing, the ruling states.
After EDS began constructing the treating plant, the county issued notices of "violation and order to abate," claiming the treating plant could not be constructed on the site because the property was zoned "rural preservation," and "salt water storage tank and similar facilities" were not an "allowed use."
EDS later applied to the county to rezone the property, but the county denied the application due to the acreage of the property. EDS then applied for a conditional use permit, but the county denied the application.
ADVERTISEMENT
EDS appealed to the North Dakota Industrial Commission seeking a declaratory judgment that the commission, rather than the county, had jurisdiction to determine the siting of its treating plant. In February 2016, Southwest District Court Judge Dann Greenwood ruled that EDS could use the land the way it was permitted by the Industrial Commission.
Dunn County then decided to appeal the case to the North Dakota Supreme Court.
However, last week the court rejected the county's argument that their zoning regulations apply in oilfield waste treatment.
"We conclude the County has no authority through its zoning regulations to veto the Commission's siting of an oil and gas waste treating plant," the ruling said.
Dunn County state's attorney Pat Merriman said the ruling is "sweeping" and does not just apply to Dunn County because the oil-producing counties had similar statutes and ordinances in effect. He said the ruling essentially gives the Industrial Commission the "sole authority" to decide where oil and gas waste treating plants are located and how they are operated.
He added the ruling leaves other related matters, such as dust control, traffic, setback lines and man camps in flux.
"There will be additional issues that will now have to be litigated because it was presumed, at least in the past, that the county controled those issues, but I think that's up in the air right now too," he said. "Time will tell."
Merriman said while the county can file for a rehearing, it would be an "extreme and unusual circumstance" for the court to reverse its unanimous decision.
ADVERTISEMENT
Merriman said overall the ruling changes how landowners can make their voices heard when it comes to situations involving potential oil and gas waste treating plants and other issues.
"... Local people like to have local control," he said. "The direct impact of the ruling is going to be that if somebody is going to protest or object to a location of an activity like this, they're going to have to go to Bismarck to argue it just to protect their property interest."
EDS owner Shawn Kluver did not immediately return a call for comment.
