SD Supreme Court Asked To Strike Down Permit

by Breanna Fuss, Reporter
October 03, 2012 5:02 PM


The South Dakota Supreme Court is being asked to throw out a state permit.

The air quality permit was issued for the Hyperion Oil Refinery, one of the largest industrial projects ever-proposed in South Dakota.

The granting of the permit created an uproar for many citizens and groups in the area of Elk Point.  They said the State Board of Minerals and Environment needed to take a closer look at the impact of the plant.

Wednesday morning at University of Sioux Falls, the South Dakota Supreme Court heard all sides.

Attorneys representing the citizens and groups against the plant said that the Environmental Impact Statement was needed before the permit was given. And it was needed to further review the impacts of the plant in all aspects- not just air pollution.

They also said the permit may have expired even after the company requested and was granted extensions.

Attorneys representing Hyperion and the DENR did not agree and said the EIS isn’t required for such a facility. They also said the permit never expired.

Gabrielle Sigal one attorney representing three groups against Hyperion's mutli-billion dollar facility said an Environmental Impact Study should have been required before giving the Prevention of Significant Deterioration Air Quality Permit.

They said the DENR 'abused discretion,' which means they did not follow standard procedures

 “They were not issuing an EIS because an EIS is much broader and encompasses many subject matters in which the board has no jurisdiction,” said Gabrielle Sigal.

Sigal went on and said they should have used other departments to conduct the study. It would have helped evaluate the broader impact.

Deputy Attorney Roxanne Giedd, who is representing then DENR, said the study is in fact out of their jurisdiction.

“It may provide lots of information for the other agencies, that is used to issue these other permits, but it doesn’t provide information for us,” said Roxanne Giedd.

Hyperion's attorney Frederick Addison agrees and said to get the permit the company legally did not need the study.    

"You are not required to perform an EIS for a federal clean air act permit,” said Frederick Addison.

The company has also asked to renew the permit to extend the start of construction. Which has the opposition questioning its validity.     

“PSD construction permits in South Dakota do not remain in affect pending appeal under the South Dakota permitting scheme,” said Robert Graham.

Robert Graham also an attorney for those who oppose Hyperion said it only stays in effect if there is continuing work on the site.

He said that's not the case on the land Hyperion plans to build on.

Addison said just because they aren't building doesn’t mean they aren't doing anything.

"We're extending and amending so we can have more time to build the facility. Is that continuing activity? It certainly is,” Addison said.

The final argument was in regards to whether or not the company had significant justification to renew the permit. The opposition said no, because the company used the recession as one of their reasoning’s. When they said the oil business is booming.

Hyperion’s attorney said it is difficult to keep moving forward when new requirements are given. He said they also feel its unwise to move forward if they don’t know all of their requirements.
 
Wednesday’s case came just days after Hyperion let options on the land they planned to build the refinery on expire. But company officials said they still plan on moving forward.

The court's ruling will be issued in a few months.