North Dakotans accuse energy service company of environmental violations

The area north of Dickinson known as the Morey Bang Piney Acres subdivision is a quiet sort of place.

Just outside of the city limits but within the city’s extraterritorial zone, it’s still largely undeveloped farmland located within sight of the new Dickinson Middle School being built.

Homeowner Lynnette Harstad points to those factors when she says her neighborhood should be a “premier” place to live.

However, Harstad and a group of residents are increasingly frustrated with their neighbor, SM Fencing and Energy Services Inc., and the industrial runoff from the company’s fenced lot that they say has killed a swath of vegetation across their own properties.

“It’s appalling,” said Harstad, who lives across the street from the energy services provider. “People have told me they wouldn’t want to live in my house with the way things are contaminated.”

In response to the alleged pollution, Harstad and some of her neighbors attended the April Stark County Commission meeting to bring their grievances to officials. While doing so, they pulled up a satellite image of the area on Google Maps to point to rivulets of dirt and brown, dead plants that stream off either end of the SM Fencing lot all the way to 40th Street West.

Harstad’s next-door neighbor, Robyn Manners, said she’d gotten more involved in seeking accountability when she saw what she described as “Jamaica-blue water” in a ditch in front of the company lot.

Manners said the homeowners have had difficulty finding any resolution for the problem she said had been years in the making.

“Nothing will grow,” she said of the damaged areas. “It doesn’t matter who we call, we keep getting the buck passed.”

‘It’ll be handled’

Despite the lack of a speedy solution, there has so far been a wide range of activity in dealing with the issue in Piney Acres.

Among others, the residents have been working directly with Joe Wanner, Southwest District Health Unit emergency preparedness coordinator, and Bill Fahlsing, Stark County director of emergency services.

Stark County Sheriff Terry Oestreich has also become involved in investigating the matter.

Both Wanner and Fahlsing said they’ve been working in close accordance with the North Dakota Department of Health and are still gathering information as they follow the lead of the state agency.

“There’s definitely been some contamination out there,” Wanner said. “How it’s handled is definitely not always to the liking of everybody’s party, but it’ll be handled. There could be replanting, putting some new ground in, putting some new forage on it. Some of it might have needed to be stripped up and removed.”

State Health Department environmental engineer Ted Poppke said his office received a complaint about the site from local officials almost exactly a year ago.

So far, Poppke said SM Fencing owner Seth Murphy has been “upfront about dealing with the problem” and has expressed a willingness to work with the health department. He said there was no record of any interaction between Murphy and the department prior to the ongoing investigation.

Poppke said a letter of apparent noncompliance was sent to Murphy on June 24 after an initial visit and a follow-up were made in that same month to observe things on the site and in the subdivision.

He summarized his view of the situation in simple terms.

“In my opinion, he basically let runoff from his site drain into property he didn’t own and it killed vegetation,” Poppke said.

While the health department did not conduct its own testing on-site, Poppke said SM Fencing had hired a third-party consultant to test for contaminants and report the results.

Sodium chloride, or salt, and a 2, 4-D herbicide were found around the location. Poppke said the herbicide is “pretty short-lived” and that, if it was the cause of the die-off, the problem should resolve itself.

However, after Poppke made a follow-up visit to SM Fencing on May 10, he said the site and affected areas “appear no better than last summer and fall.”

He said he was checking with his supervisors to determine the best way to proceed with the issue. Before the Tuesday visit, Poppke said he would likely ask Murphy to revisit his sampling and mitigation plan and “look to see what didn’t work and start over” in the event of a lack of progress.

Murphy declined an interview, but in a statement said his company has “taken various steps in an attempt to lessen the impact” of its expanding activities on its surroundings, including the recent construction of a new facility north of Dickinson.

“Any concerns regarding the aforementioned property have been addressed with both local and state authorities as well as private consulting contractors,” Murphy stated. “With the help of these entities, we have been able to mitigate any concerns that have arisen.”

While that mitigation has apparently been unsuccessful, Poppke said his agency usually fines environmental violators for “other issues” than simple noncompliance with regulations.

From county to city

The site in question has been in the city’s extraterritorial zone since around 2010 and, prior to that, was under the total jurisdiction of Stark County.

The county still collects taxation from the Piney Acres neighborhood and would be responsible for road management if that task was not designated to a homeowners association.

Dickinson city planning director Walter Hadley said the area is zoned for agricultural use and has a “variety of things that are allowed,” which could include the energy services performed by SM Fencing. The company was registered with the North Dakota Secretary of State office, at least as far as its name was concerned, as performing energy services since late 2009.

“(County) records for land use stuff are marginal, at best,” Hadley said. “ … If there was something that prohibited ‘X number of uses,’ it’s difficult because that has never been produced or forwarded to us.”

Hadley said his staff planner at the city works for the county as well and is not aware of any additional information there to settle the matter any further.

“Now, we keep very good records of all this stuff,” he said. “But as you go back to that 2010, prior to that, it’s pretty minimal that’s been kept and saved, even at the city.”

Though the nature of the land-use was somewhat unclear, Hadley said he used aerial photos to come up with an estimated level of the intensity of use in 2010, when the city became involved through its extraterritorial zone.

From there, Hadley said he told Murphy the activity level on the site needed to be scaled back to that earlier point to accommodate the nearby residences and make up for the fact that SM Fencing had not obtained further city zoning approval beyond its original permittance.

Hadley said he had spurred along the transition to the company’s new lot  “a little quicker than they wanted to,” but said there was no authority to make SM Fencing completely abandon the Piney Acres site, as their work there predates the residences that now stand around it.

‘We want to know what’s going on’

While much of the work performed by SM Fencing has been moved out from the neighborhood growing around it, the people whose own properties have been affected are still anxious.

Robyn Manners and her husband, Chris, say there used to be ducks and other birds that made use of the seasonal flow of water that ran through the acreage behind their house.

Since the vegetation died off, wildlife has moved away and now the homeowners are unsure of their own status in the area.

“We want our concerns addressed about the value of our property, the safety of our environment and the appearance of our neighborhood,” Robyn said. “With the environmental damage, we want to know what’s going on.”