Regulators to propose fine for Dakota Access

BISMARCK--State regulators decided Wednesday, Nov. 2, to draft a complaint against the developer of the Dakota Access Pipeline for failing to notify them right away about a cultural find, possibly the first time the agency has taken such action a...

A pickup is parked on the hill near where stone cairns and other artifacts were discovered on the Dakota Access Pipeline route on Oct. 17, 2016, in southern Morton County, N.D. Courtesy of North Dakota Public Service Commission

BISMARCK-State regulators decided Wednesday, Nov. 2, to draft a complaint against the developer of the Dakota Access Pipeline for failing to notify them right away about a cultural find, possibly the first time the agency has taken such action against a pipeline company.

Public Service Commission Chairwoman Julie Fedorchak said she was "extremely disappointed" when she learned Dakota Access LLC had discovered American Indian artifacts in the pipeline route but had not notified state regulators.

The company, a subsidiary of Dallas-based Energy Transfer Partners, did notify the State Historic Preservation Office about four cairns discovered during construction in Morton County, and the pipeline was rerouted to protect the sites in coordination with the state archaeologist.

The company's permit requires that the Public Service Commission also will be notified of unanticipated discoveries and give clearance to proceed with construction. The commission learned about the discovery from its third-party inspector and then requested information from the company, which formally notified the commission on Thursday, 10 days after the find.

Fedorchak said North Dakota's regulatory approach depends on a level of trust, which is verified by the third-party inspectors.


"This trust demands an exchange and full and prompt disclosure of key information," she said.

Staff for the three-member, all-Republican commission will draft a complaint, likely by the end of the week, and also propose a fine.

Dakota Access can request a hearing or pay the fine and move on, Fedorchak said.

The maximum penalty the commission can issue is $10,000 per day per violation, or a maximum of $200,000. Fedorchak said she doesn't view this issue as warranting the maximum fine.

The commission has not issued a complaint for a pipeline company since at least 1988.

The order granting pipeline construction does not specify a timeframe for reporting such discoveries.

Commissioner Brian Kalk said the "implied intent" is for things to be reported immediately or once the company has enough facts. Kalk noted the company has promptly notified the commission in other instances, such as worker injuries.

Commissioner Randy Christmann recused himself from the discussion because the pipeline crosses his mother-in-law's property.


The company said in an Oct. 27 letter the delay in notifying the PSC about the discovery was "a result of the find occurring simultaneously with Dakota Access officials coordinating an on-site visit for various officials," including U.S. Rep. Kevin Cramer, R-N.D., Standing Rock Sioux Tribe Chairman Dave Archambault II and the U.S. Army Corps of Engineers' district commander.

That tour took place Oct. 20, three days after the find.

The Standing Rock Sioux Tribe was not notified about the discovery or invited to participate in the evaluation of the site. State archaeologist Paul Picha said notifying the tribe was not a requirement of the unanticipated discovery plan.

Calvin Grinnell, who works for the Three Affiliated Tribes historic preservation office and is a former chairman of the State Historical Board, attended Wednesday's meeting at the request of a tribal member.

Grinnell said he thinks the commission is "following in the right direction" by considering a complaint against the company for the delay in notifying regulators.

Susan Beehler of Mandan, who also attended the meeting, said she thinks the Public Service Commission can do more to make it easier for the public to participate in the process.

"I'm wondering if we couldn't do better as a state?" Beehler said.


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