S.D. Supreme Court affirms air permit but doesn’t change DENR’s pollution limits

Posted January 31, 2013 at 6:00 am

By Julie Ann Madden

On Jan. 24, the South Dakota Supreme Court agreed with several state agencies’ decisions regarding Hyperion Refining LLC’s air permit when it upheld a lower court’s ruling.

However, the court did not find totally in favor of Hyperion. When it came to the carbon monoxide Best Available Control Technology pollution emission limit, the court sided with state officials’ pollution emission limit.

Hyperion opponents had challenged the Prevention of Significant Deterioration Air Quality Permit issuance, stating 1) South Dakota’s Department of Environment & Natural Resources (DENR) and Board of Minerals & Environment (BME) failed to require an Environmental Impact Statement before issuing the permit; 2) State officials erred in granting Hyperion an extension of the initial air permit because they didn’t rule on the extension during the initial permit’s 18-month time period; and 3) Hyperion didn’t present satisfactory justification for its request to extend the commence construction deadline.

Hyperion officials claimed the 0.007 lb/mmBtu BACT pollution emission limit for carbon monoxide required by the DENR was not achievable, and wanted the limit set at 0.010 lb/mmBtu.

“(Jan. 24)’s ruling by the South Dakota Supreme Court affirming Hyperion’s air permit is fantastic news,” said Hyperion Vice President Preston Phillips. “This demonstrates our team put together an excellent plan that goes the extra mile to protect the environment, and the State DENR made the plan even better.”

“The experts at DENR demonstrated their stewardship for the environment and their dedication to protecting the health of the residents of South Dakota and all of Siouxland,” he added.

“Given the fact the Sierra Club’s appeals have consumed more than 16 of the 18 months we have for a construction-start window, it is likely we will apply to the BME for an extension to our permit.” said Phillips. “We’re eager to push the project forward, but the constant delays by the Sierra Club make it difficult to bring people on board and begin construction.”

“We were disappointed by the judges’ ruling but not surprised,” said Ed Cable, spokesman for the three entities who appealed the lower court’s ruling: the Sierra Club, Save Union County, and Citizens Opposed to Oil Pollution.

“Obviously, we are in the process of reviewing the various options we have,” he said, adding the next step they take “is likely predicated on what Hyperion does next. Their first challenge is to respond to the March 15 (commence construction) deadline that the state permit has presented.”

In the meantime, Hyperion officials have officials released more of their land options that they chose not to pay the annual land option payments on last September.

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