2 Commissioners vote to hire energy expert to create Road Use & Decommissioning agreements

County Attorney Jim Clevenger discussed the Tamarack Solar Project with the County Commissioners on Monday.

Clevenger said under either the existing County solar energy system regulations or the new Plan Commission large scale solar energy system regulations, a company seeking approval for a project must enter into a Road Use Agreement and a Decommissioning Agreement with the County. 

Clevenger and County Highway Superintendent Jason Peters modified a copy of the White County Road Use Agreement by implementing more extensive regulations to protect the county.  That draft was sent to Tamarack Solar for review and so far, Clevenger hasn’t heard from them. 

The County Attorney said once they hear back from the solar company, he will schedule a work session for the commissioners to be up to speed and make any changes to the agreement they feel is necessary to protect the county. 

On the Decommissioning Agreement the County Attorney is still recommending the hiring of an attorney with experience in dealing with solar energy companies and decommissioning agreements.

There is an existing proposal, but Clevenger hasn’t done much with it since it’s not his expertise.

Commissioner Stan Klotz interrupted Clevenger and explained his idea.  He would like to have a joint meeting with the four attorneys representing the Plan Commission, Unsafe Building Board, Commissioners and Council to address their likes and dislikes of the proposed agreement.

County Attorney Jim Clevenger said he didn’t want to get into an argument with Klotz, but he has read several decommissioning agreements.  He commented, “They don’t do anything that would impact negatively the Unsafe Building Committee acting if that were the situation.”   He explained, “They are solely kind of a backup of a decommissioning proposal in the event these things aren’t providing any solar energy and their backup actually to the landowner, the farmers’ leases is what it amounts to.” 

The significant factors of a Decommissioning Agreement have to do with bonding and surety and provisions that don’t necessarily fit with the groups Commissioners Klotz wants to involve.

Commissioners Burroughs was absent from the last meeting when this initial discussion came up.  He said the Road Use and Decommissioner Agreements are new to all of us.  His recommendation was to hire Rick Hall from Barnes & Thornburg, who has created several Road Use and Decommissioning Agreements to draft agreements for Marshall County and have Commissioner Klotz’s work session use those agreements.  Commissioner felt it would be best for all involved to hire someone from outside Marshall County that wouldn’t have any bias on the project.   

It was noted that Tamarack Solar is willing to pay the attorney cost to create the agreements.

Attorney Clevenger said, “These decommissioning agreements are tricky to make sure they are enforceable as they need to be.”  He also said farmers that enter a lease with a solar company bear the risk of ending up with a field of old solar panels that aren’t working.  He closed his comments by saying the decommissioning agreements are there to protect Marshall County so the county doesn’t end up with some of those expenses.   

Commissioner Burroughs motioned to contact Mr. Hall to see if he has time to put together a Road Use and Decommissioning agreement for Marshall County and see what the cost would be.  The motion was seconded by Commissioner Overmyer.  The motion passed 2 to 1 with Commissioner Klotz voting no.