Supervisors delay action on first reading of carbon pipeline ordinance

After lengthy discussions, the Montgomery County Board of Supervisors is waiting to take action on the first reading of the new carbon pipeline ordinance.
The supervisors held a public hearing on the pipeline ordinance prior to taking action. Rural Red Oak resident Jan Norris again questioned the safety procedures in place for the pipeline, citing a situation that occurred in Kossuth County.
“In the following Q.A, one landowner asked if they had his cell phone number to call him in the middle of the night if the pipeline ruptured. What followed was probing on how close neighbors were going to be rescued. Summit tried to reassure citizens that the status systems wouldn’t fail,” Norris said. “Then Summit said local first responders would only be responsible for an initial response, such as determining wind directions and what roads to block off. They described it as being tactical, until Summit representatives got there. I wonder how long might that take.”
According to Norris, Summit representatives said in that situation, said upon arrival, they would set up a hot zone, and that no electric fire trucks were necessary, because no one would enter the hot zone in a fire truck.
Norris said when protests were made that people needed to get out, Summit responded that they would take care of it. She also cited a statement that unless the person was right at the leak site, they wouldn’t be harmed, but Norris stated in Mississippi, people as far as one mile away were injured, leading to Pipeline and Hazardous Materials Safety Administration, or PHMSA, to rewrite safety regulations specific to CO2 pipelines.
Vicki Rossander, who served on the Montgomery County Planning and Zoning Commission until Feb. 1, said the commission spent months reviewing and discussing the language and content of the proposed ordinance, and made sure it comprehensively addressed the concerns that Montgomery County citizens had regarding the installation and safety of the pipeline, and nowhere in the ordinance did it say hazardous pipelines were not permitted in the county.
“What it does say is that is that if a hazardous pipeline is constructed, it will be done in such a manner as to protect the citizens of the county during the construction period, completion and operation, and during the decommissioning and removal of the pipeline, as well as addressing what was required by the company to prepare the county in case of a rupture. Please don’t let the pipeline company tell us that ruptures never happen. There is never such a thing as being overly prepared, and that’s what the ordinance does,” advised Rossander.
The supervisors were also addressed by county resident Rick Taylor, who serves as the Montgomery County Board of Adjustment Chairman. Taylor said the board was named in the ordinance many times, and he had some concerns with the duties placed upon the board.
“There are a number of things I’d like clarified in the ordinance before we proceed, and some of the members may have conflicts of interest with the ordinance terms as-written. It says the conditional use permits for landowners don’t require a public hearing, they can simply be approved at a regular board meeting. We don’t have regular board meetings. Every meeting is a special meeting, and every board meeting includes a public hearing,” Taylor said. “I looked at the map to get a figure for what the number of applications might be to come before the board if the ordinance was passed. It looked to me like there would be 27 to 30 special use permits we would have to review and approve. My board is a volunteer board made up of appointees, and this is going to become quite a job for them. I’m concerned about that.”
Taylor said he would like to see modifications in the ordinance to reduce the burden on his board, and expressed his concerns about the amount of time and effort the situation may put his board members in.
Summit Carbon pipeline engineering manager Eric Welch also addressed the board. Welch said the pipeline industry was highly regulated at both the federal and state levels, and PHMSA regulated pipeline safety, specifically CO2 pipelines.
Welch felt the regulations were rigorous and had been well-tested and successful through thousands of miles of pipeline in the county.
Welch also said the ordinance seemed significantly aimed at safety issues that would impose additional local requirements on an activity that state and federal regulatory regimes already governed through permits, and as a result, they were pre-empted by both state and federal law.
“Summit does not believe the ordinance is appropriate as a matter of policy, and more importantly, we know it would conflict with both state and federal laws. In all practical aspects, this ordinance would prohibit Summit from going through the county, and thus deny farmers and ethanol plants the project’s benefits. If stopping the pipeline completely is really your goal, the proposed ordinance as-written, would effectively accomplish just that.”
Welch said a virtually identical ordinance was the subject of current litigation between Summit Carbon Solutions and Shelby County.
If Summit prevailed in Shelby County, the same outcome could be expected in Montgomery County. If Shelby County prevailed, the portion of the project going through Montgomery County would not be built.
Welch stated that he felt Montgomery County could wait and see what happened in Shelby County. Legal proceedings were not expected on the Shelby County lawsuit until January 2024, and would take an undetermined amount of time to decide.
Supervisors Chair Mike Olson asked if the county passed the ordinance as presented, what effect it would have on the people who have already negotiated with the company. Summit public relations representative Sabrina Zenor said the ordinance would supersede the previous setback agreements.
Superisor Charla Schmid asked what Summit Carbon would do if the ordinance was not passed. Ahlers and Cooney attorney Tim Whipple, who helped draft the ordinance, advised Summit could continue to negotiate with landowners, in violation of the ordinance’s setbacks, on a case-by-case basis.
Supervisor Randy Cooper asked if the county passed the ordinance, if Summit would discontinue negotiations. Welch said Summit would proceed with its negotiations, with the belief they would ultimately prevail in the Shelby County lawsuit.
The ordinance under review by the county included a setback of 1,000 feet from an occupied structure, while Jan Norris said PHMSA regulations had a setback of 50 feet from a structure. Whipple felt that 50 feet was not an enforceable setback, and they explained their reasons for that was explained in the Shelby County litigation.
“The 50 foot setback was set by administrative rule in 1981, before Congress adopted siteing and routing statutes. Those statutes supersede that administrative rule, in our view. There are no conflicting PHMSA regulations in regards to the 1,000 foot setback outlined in the ordinance. Federal courts around the country have helped setbacks be part of the siting and routing process, not safety standards. Therefore, they are not preempted. That is our position until the courts hold otherwise,” Whipple stated.
Robinson felt that if 1,000 feet was not a reasonable setback in the eyes of Summit, she felt that 50 feet was not a reasonable setback either, and wondered if there was a happy medium that could be reached.
“I feel that there’s some room for negotiation as to the specifics on possibly each and every parcel of land that it would go through,” Robinson said.
Welch said Summit was open to modifying the ordinance to make the pipeline viable for construction, and they were holding discussions on a landowner-by-landowner basis.
“If they’re agreeable to the easement to begin with, then they tell us if there’s a structure they want us to stay away from, we try to accommodate that,” Welch commented.
Whipple said the ordinance already contained an exception in the variance process, and the company could come in and make case-by-case appeals to the board of adjustment if they needed relief from the 1,000 foot setback at any point in the line, they just needed to provide grounds for the variance to the board of adjustment.
County Auditor Jill Ozuna asked if Summit had an average on the current setbacks negotiated with county residents. Spokesperson Riley Gibson said they ddn’t have the exact numbers available, but they could be provided at a later date. Supervisor Mark Peterson also requested data on the number of landowners in Montgomery County that had currently signed easements but did not actually reside in Montgomery County.
Robinson made it clear to the residents that the county was doing what it could to do what was right for everyone involved.
Schmid felt that the board of adjustment should sit down with the planning and zoning board to review the ordinance and address Taylor’s concerns. Robinson agreed there were clarifications that needed to be made.
The supervisors took no action on the pipeline ordinance pending further review.