PIERRE, S.D. (KELO) — The South Dakota Public Utilities Commission has made official its determination that Navigator won’t receive a permit to build and operate a carbon-dioxide pipeline.

The 21-page order issued this week however shows the 3-0 vote to deny Navigator’s application wasn’t as unanimous as initially appeared.

Chair Kristie Fiegen and Commissioner Gary Hanson agreed with the entire order. Commissioner Chris Nelson concurred in the result but partially dissented.

The earliest the September 26 order can take effect is 10 days later. A state administrative rule gives Navigator or any other party in the hearing 30 days to apply in writing for a rehearing or reconsideration. State law also provides that the parties may appeal the decision and order to state circuit court by serving notice of appeal to the court within 30 days.

“We are continuing to review and do not yet have a decision on next steps in South Dakota,” Navigator’s vice president for government and public affairs Elizabeth Burns-Thompson told KELOLAND News on Friday morning.

Commissioner Nelson specifically disagreed with nine of the order’s 103 findings of fact:

36. Applicant’s failure to comply with the landowner notification requirement pursuant to SDCL
49-41B-5.2 causes the Commission to doubt Applicant’s ability to be thorough and diligent in its duty to comply with legal requirements.

43. Applicant’s failure to be prompt and thorough with Staff leads to a concern that Applicant
will not establish open and candid relationships with regulators.

48. The testimony of Navigator’s witness Jeffrey Pray was not sufficient to establish that
landowners could not face negative financial impacts to their insurance coverage. Mr. Pray
testified that damages to landowners cause by release of pollutants are not covered by the
landowners’ insurance policy. EH 2450:8-16. If a landowner wished to obtain coverage for
pollution liability, the landowner could obtain it but would have to obtain a pollution liability policy. Exhibit N12 at ¶ 9. Therefore, Navigator failed to establish that a landowner could not suffer economic harm due to an occurrence such as loss of life or loss of livestock due to the release of carbon dioxide.

49. The Commission finds that Navigator failed to establish that the Project would not pose
an unacceptable level of threat of economic harm to the inhabitants or expectant inhabitants of
the siting area.

54. The Commission finds that Navigator failed to meet its burden of proof under SDCL 49-
41B-22(2) (regarding re-application.)

68. Navigator further failed to provide sufficient evidence to demonstrate that the Project
would not negatively impact the Big Sioux Aquifer.

70. Therefore, based on the above findings, the Commission concludes that Navigator failed
to meet its burden of proof to demonstrate that the Project will not substantially impair the health or safety of the inhabitants.

98. The Commission finds that it was not proven by a preponderance of the evidence that the
Project, if constructed, will not pose an unacceptable threat of serious injury to the environment
nor to the economic conditions of inhabitants or expected inhabitants in the siting area.

99. The Commission finds that it was not proven by a preponderance of the evidence that the
Project, if constructed, will not substantially impair the health and safety of the inhabitants in the
siting area.

Nelson also disagreed with four of the order’s 26 conclusions of law:

18. Applicant failed to prove by a preponderance of the evidence that the Project will not pose
a threat of serious injury to the environment.

19. Applicant failed to prove by a preponderance of the evidence that the Project will not pose
a threat of serious injury to the social and economic condition of the inhabitants of the siting area.

20. Applicant failed to prove by a preponderance of the evidence that the Project will not
substantially impair the health and safety of the inhabitants of the siting area.

22. Applicant failed to prove by a preponderance of the evidence that the Project will not
unduly interfere with the orderly development of the region.