Hearing on TC Energy CUP set for Friday

This Friday, Holt County Supervisors will consider whether a conditional use permit will be granted for TC Energy or if a recommendation from the Holt County Planning and Zoning Board will take precedence.

A public hearing is set to begin at 1:30 p.m., in the district court room at the Holt County Courthouse in O'Neill.

At a Jan. 28 hearing, zoning officials voted 6-1-1 to recommend the board of supervisors to deny the application as incomplete, per section 2.1, paragraph three, until TransCanada gains access to all land, either by voluntary easements and/or if condemnation happens, they are successful in gaining access to all private drainage tiles and can comply with that section (of zoning regulations).

Gene Kelly voted against the motion. Dan Grass abstained.

During the hour-long meeting, several zoning board members favored a new groundwater study. The study included in the CUP was conducted in 2014.

"We have more water sitting around than ever before. Since 2014, things have changed," said board member Keith May.

Board member Mary Kaczor, of Ewing, said in 2014, the county was coming out of two of the worst droughts seen in Holt County.

"It doesn't even compare to what we have now. There's water everywhere," she said.

"Water is a precious commodity and we need to protect it," May added. "I need a current water study, we need to know what we're looking at, before I can even consider this."

Questions about how the pipeline company will handle fields with drainage tiles were answered by project land manager, Denisha Cummings.

"Typically what we do, we complete a construction questionnaire, get a layout of the drain tile and work directly with them (the landowner) for excavation with the contractor," she said.

For landowners who have not reached an agreement with TC Energy, condemnation may be an option.

Patrick Pepper, an attorney with McGrath North said, "We won't be constructing on property without an easement."

If private drain tiles are encountered, TC Energy will follow plans and repair them.

"It's not surprising that it's far more efficient to have this discussion with the landowner whose drain tile it is," he said.

Kaczor said current zoning regulations require that a pipeline construction permit "shall be accompanied by two sets of plans designating where those are at."

"I don't see any plans in here," she said.

Pepper said that section of regulations refers to the word, "drainage."

"Drain tile is drainage," Kaczor replied.

Pepper told board members TC Energy has a plan to handle drain tile when it is encountered.

Kaczor countered it is still not what is required per county regulations.

Zoning board member Gene Kelly said most drain tiles don't go down to a four foot depth, which is the depth the company claims they will bury the pipeline.

Cummings said the company will call 811 - the digger's hotline - and have a representative on site.

"Our construction plan is to go under those. We maintain a two-feet separation," she said.

Vern Smith, zoning board member, asked about the status of townships that passed resolutions not to allow the pipeline.

Pepper said attempts had been made to make contact township contacts, with about half of them reached by telephone. No ordinance situations were discovered.

Planning and zoning officer, Mike Durre, said letters were sent to townships on Nov. 22 and no responses were received.

Audience members questioned who will be responsible for potential leaks in the pipeline.

Cummings said TC Energy is responsible for leaks, per easement agreements.

"We're responsible for the cleanup of the leaks. The only time it can be otherwise is willful misconduct," she said. "We have indemnification language in our easement agreement."

"We sat here, Oct. 29, and talked about this and how you assured us that it was the safest pipeline that was ever going to be built and yet that night, there was a leak up in North Dakota, and you guys all knew about it and don't tell me you didn't. We wake up and find out there's the worst leak ever on Keystone and we're supposed to take your word for it, that this isn't going to happen? Your word?," Kaczor questioned.

Cummings said there is no guarantee that a leak won't happen in the future, but said the company would be responsible for cleanup.

Kaczor said, "We're supposed to take your word that you're going to take care of it and be responsible, after that night. Sorry, your word's not good enough. We need to protect the people of this county."

She called for a stronger indemnification process before the zoning board moves forward.

Board member Frank Heying said eventually, something will happen to the pipeline.

"Not saying your word's not good, but I think a document is better. These things do happen, they've been happening, and I think that's one of the biggest concerns we're dealing with," Heying said.

"Not one single resident in this county should have to spend one dime of their own money on something you folks have caused," Kaczor said.

Cummings reiterated that TC Energy would be responsible for any damages caused by the pipeline.

Terry Frisch, of Atkinson, asked if TC Energy would be willing to pay a set cost per barrel that could be placed into a cleanup fund, similar to a proposed law in South Dakota.

According to Cummings, all state statutes would be followed.

Holt County Attorney Brent Kelly, who was in the audience, said he would like to see the zoning board enter into an indemnification agreement, in addition to the regulation listed in current zoning regulations.

Pepper said the company has presented certification that the company will be bound by everything within the regulations.

Kelly asked if TC Energy would have an objection to entering into an indemnification agreement.

"It's kind of like built-in suspenders," Kelly said.

Pepper responded he would need to address the issue with his client.