Commissioners take action against Tallgrass

The Board of County Commissioners voted to take legal action regarding the Tallgrass Pony Express Pipeline, LLC at their February 4 meeting.

According to Kimball County Zoning Administrator Sheila Newell, Tallgrass Pony Express Pipeline, LLC, which recently moved into the old ASI building on the east side of Kimball, has begun construction on a pump station which will be used in the process of converting the Pony Express Pipeline, also known as 'PXP', which runs from Guernsey, Wyoming to Cushing, Oklahoma from serving as a natural gas pipeline to crude oil without filling out the proper paperwork to do so in Kimball County.

Newell told the commissioners that without the completion of the proper paperwork, the company has violated the Kimball County Zoning rules and regulations, and in response, Newell has repeatedly sent certified letters of violation to Tallgrass representatives in order to address the issue.

"I sent a certified letter to them with a notice of violation of the zoning regulations, because they have never gotten a permit to build that pump station that they want to out there. And they went ahead and started doing it anyway," Newell said.

According to Newell, the construction of the pump station without the proper paperwork is the culmination of months of back and forth between Tallgrass representatives and herself along with the legal counsel on both sides trying to get the proper process for the construction set in motion in order to alleviate any tensions that could potentially arise from the situation.

The meetings between Tallgrass representatives and county officials hinged around Tallgrass completing an application for a conditional use permit for the pump station. However, according to Newell, when Tallgrass representatives were made aware that the parcel of land which would need to be bought for the project would have to be a minimum of 10 acres per state statute, talks rapidly fell through.

"They completed an application for a request to add this as a conditional use. When I sent it back to them saying that it needed to be 10 acres is when we ran into a major problem, because they didn't want to do the 10 acres. So they started the application process and then as soon as it was the 10 acres, they backed out. But then, after another month and a half, they bought ten acres," Newell said.

However, after acquiring the 10 acres needed, Stephen M. Bruckner, Attorney for Tallgrass Pony Express Pipeline, sent a letter, provided by Newell and dated December 12, 2013, stating that the project was, in fact, in compliance with Kimball County zoning regulations through Section 5.02 of Kimball County Zoning Resolution, which defines permitted uses including "public utility transmission pipes, lines and substations" along with "accessory buildings and uses customarily incidental to a permitted use".

"The Tallgrass transmission pipeline serves the public convenience and necessity by transporting products to serve the public. The pipeline therefore is a 'public utility transmission pipe,' as defined in Section 5.02 in the same way that the natural gas pipeline serving the City of Kimball's town border station is a public utility transmission pipe," Bruckner said.

Bruckner also stated that the proposed pumping station, which is located along Airport Road in Kimball County, is either a sub-station or an "accessory use" that is incidental to the permitted transmission pipe use under Section 5.02 with the definition of "accessory use" defined in Section 4.02(2) of the Kimball County Zoning Resolution as "use of land or of a building or portion thereof customarily incidental and subordinate to the principal use of land".

"A pipeline needs 'accessory' equipment to move products through the pipeline. The Nebraska courts repeatedly have stressed that zoning regulations are to be given a reasonable, common sense, plain meaning. Applying this legal standard, a pumping station clearly is an 'accessory use' that is 'customarily incidental' to the permitted use of this public utility transmission pipe," Bruckner said.

However, Robert Brenner, Legal Counsel for the Kimball County Board of Commissioners, states in a letter in response to Bruckner's statements, dated January 6, 2014, that Tallgrass is, in fact, not a public entity and therefore does not fall in compliance with the zoning regulations under Section 5.02 of the Kimball County Zoning Resolution.

"Tallgrass is taxed in Nebraska a private, non-public entity, for both income and real property taxation. We refer you to the Department of Revenue and Tallgrass is centrally taxed by the State of Nebraska as a private entity. No oil, no product, no distribution of gas, or in the future oil, will be dispersed to Kimball County Nebraska residents," Brenner said.

Brenner also states that Kimball County officials have not changed their stance on the matter and request that Tallgrass file the proper paperwork to continue the project on the pump station.

"Kimball County representatives have consistently maintained and stated that Tallgrass must comply with the Kimball County zoning regulations which it has not to date. Kimball County has offered and cooperated consistently with Tallgrass representatives," Brenner said.

Amid the debate back and forth, according to Newell, Tallgrass representatives commenced construction on the pump station on Airport Road, prompting Newell to send a notice of violation of zoning and subdivision regulations to Tallgrass representative Dick Sears on January 27, 2014, stating that in order to be in compliance Tallgrass must "stop commencement of construction and request a pump station be a condition use in the A-1 Agricultural District in accordance with Section 28 of the Kimball County Zoning and Subdivision Regulations".

Though Tallgrass representatives were made aware of the violation, according to Newell, construction has steadily continued on the location of the pump station.

"On January 27, I went out to take photos, and they had started...what I saw was construction equipment, materials, and personnel on the site getting ready to start building their pump station," Newell said. "I have been out every day since then and took photos. They are building at a rapid pace."

The Kimball County Planning Commission has also gotten involved in the process with Chairman Klent Schnell expressing to the board of commissioners a need to pursue action against Tallgrass in order to cease construction.

"At the Planning Commission meeting on the 27th, we added an emergency agenda item with the Planning Commission recommending that the county board proceed with legal action against TallGrass Pony Express Pipeline," Schnell said.

According to Schnell, the process for obtaining the required permits is not as taxing as the it has been made throughout the past few months.

"It's very simple. First of all, they would have to get amend to the conditional uses for a pump station and then come back in and file a conditional use permit and have our hearing. It's not a complicated process for them to do this, to follow the rules and regulations of the Planning Commission," Schnell said.

Schnell also stated that the commission is not opposed to the pump station.

"The Planning Commission, through our meetings, they're not against the pump station, because according to their stuff, it's going to employ three to five people out there. Which is fine. Just follow the rules and regulations like everybody else has to is all we're asking," Schnell said.

Concerning legal recourse, Brenner stated that the violation and continuing construction at the pump station site falls under Section 31.02 of the Kimball County Zoning and Subdivision Regulations which states that "any person, partnership, limited liability company, association, club, or corporation violating any provision of this Resolution is guilty of a Class III misdemeanor" which gives the county the option of giving citations to workers on the site every day until the proper paperwork is filled out and use awarded by the county.

"The citation would get the thing stopped if we cited every guy on the place, because it says every person. And then the sheriff goes out the next day, that's a Class III misdemeanor. That's $500, and each one of them will have a different citation for each day. I wouldn't be working there. If I were a laborer, you wouldn't get me coming back the next day," Brenner said.

Brenner also states that the citations are not in an effort to keep Tallgrass from completing the project in the future, but to encourage Tallgrass to comply with the county and complete the conditional use application process.

"That's exactly what we're hoping, that real discussions occur and they say, 'Okay, guys. We'll listen. We got your attention. You got our attention. Let's do things right,'" Brenner said.

After conferring with Brenner and County Attorney David Wilson, the board of commissioners unanimously approved a motion authorizing the county attorney to take appropriate action with the Kimball County Sheriff's Office to serve citations of violation to Kimball County zoning regulations section 31 and also to appoint Attorney Robert Brenner as special acting attorney in further proceedings concerning Tallgrass.

Calls to Tallgrass representatives for comment were not returned at the time of press.