Dakota Access LLC is fighting a $15,000 proposed fine from the North Dakota Public Service Commission, arguing the company’s delay in notifying regulators about artifacts found in the pipeline route was not a “willful violation.”
Attorneys for the pipeline company have filed a motion to dismiss a complaint by the Public Service Commission that alleges Dakota Access violated conditions of its permit.
The pipeline company discovered four stone cairns and other artifacts during construction in Morton County on Oct. 17. Dakota Access notified the State Historic Preservation Office and rerouted the pipeline to avoid the artifacts.
However, the company did not immediately notify the Public Service Commission, which learned of the discovery about a week later from a third-party inspector. Dakota Access submitted information to the PSC on Oct. 27, making the discovery a public record for the first time.
Public Service Commission Chairwoman Julie Fedorchak has said the company showed a lack of transparency by not immediately notifying state regulators. However, the permit does not specifically include a timeframe for such notifications.
Attorneys for Dakota Access argue that while commissioners take issue with the timing of the notification to the PSC, “the commission does not have carte blanche to impose penalties or fines for actions the commission merely finds ‘disappointing.’"
The complaint also alleges Dakota Access violated terms of the permit by not getting clearance from the PSC to proceed with construction after rerouting the pipeline.
Staff for the commission proposed a fine of $15,000. If a fine is imposed, it would be the first time since at least 1988 that the agency has issued a fine against a pipeline company related to a siting case.
Attorneys for Dakota Access argue the fine can only be imposed if the company “willfully” violated the conditions of the permit and points out that Fedorchak has said the company did the right thing by notifying the state archaeologist.
Fedorchak said Thursday she was aware the motion had been filed but she didn’t immediately have a comment. Staff will have 10 days to respond to the motion and then the commission will decide whether to approve or deny the motion to dismiss the complaint.
The State Historic Preservation Office also did not notify state regulators about the cultural artifacts. The agency did not involve the Standing Rock Sioux Tribe in the site evaluation or notify the tribe of the find, even though tribal leaders, the state archaeologist and others all participated in the same tour three days after the discovery was made.
The tribe has repeatedly disputed the state archaeologist’s findings that the pipeline route won’t affect cultural resources.