A number of interstate pipelines and pipeline customers lastweek indicated they would oppose any FERC proposed rule requiringpipes to formally notify affected landowners about constructionprojects prior to filing applications, saying that changes toexisting practices were unnecessary, could further snarl thecertification process and might even aggravate what are alreadytense pipeline-landowner relationships. In late September, FERCsuggested in a notice of technical conference that it was leaningtoward such an initiative in order to involve landowners earlier inthe certification process.

In comments filed in advance of a scheduled Dec. 9th technicalconference on the issue, the majority of pipelines and industrialsinstead rallied behind, if not all the specifics, the generalthrust of an alternative measure proposed by the Interstate NaturalGas Association of America (INGAA). For some, the INGAA proposalwas the lesser of the two evils. It would require interstatepipelines to notify the landowners of record by certified mail assoon as a project application receives a docket number, which isthe day after it’s filed, and to also send landowners a copy of aFERC brochure that describes in “pretty neutral terms” what theirrights are and how they could intervene in the process.

The El Paso Energy Interstate Pipelines agreed with INGAA thatlandowners should be notified after a project application is filed,but they think requiring notification one day after filing wouldimpose a “significant administrative burden” on pipelines due tothe sheer number of landowners usually involved in “greenfield”projects and expansions. A large pipeline expansion, for example,could easily involve notification of 1,000 to 1,500 landowners.

A “more reasonable” requirement, the El Paso pipelines said, isfor pipelines to notify landowners within five business days afterfiling provided the docket number is available on the same day thecertificate application is filed. “Because the Commission generallydoes not notice certificate applications until one to two weeksafter they are filed and because the landowner notification willinclude the Commission docket number and the procedures forintervening in Commission proceedings, landowners will havesufficient time to intervene in the expansion [or greenfield]project proceeding.”

Great Lakes Gas Transmission L.P. also supported the gist of theINGAA proposal, but added that it opposed the means of landownernotification – certified mail. From its experience, it noted thatmany landowners affected by a pipeline project aren’t “physicallypresent” on the property, which precludes them from receivingcertified mail. Although most can pick up the mail at their localpost offices, some landowners “may live out of state during part ofthe year,” and would be unaware of any certified mail sent to them.

“The drawbacks to certified mail are overcome by using regularU.S. mail. First, the item would be delivered to nearly alllandowners, including those off-site landowners who forward theirmail service to their present or temporary residence,” Great Lakessaid. Moreover, the additional costs to pipelines of certified mailwould be avoided.

Tailored to Situation

Williston Basin Interstate Pipeline, which weighed in againstthe INGAA proposal, particularly took issue with notifying affectedlandowners, as well as sending the FERC brochure, by certifiedmail. It proposes that “the pipeline companies should have theoption to hand-deliver such pamphlets any time prior to the filingof the application or up to three business days after such filing.”The pipeline said that alerting affected landowners to thepossibility of eminent domain by certified mail wouldn’t be”conducive to the continuation of [the] good relationship” that itcurrently has with landowners. The Enron Interstate Pipelinesagreed, saying that certified delivery of formal regulatorynotification “creates a threatening environment to the landownerand prematurely narrows the window for negotiation.”

In the event changes are inevitable, Williston said it favorsFERC taking a performance-based approach to landowner-notificationregulations rather than using a cookie-cutter approach. “Byperformance-based, Williston Basin means in instances where thereare no complaints from landowners associated with a certainpipeline, that pipeline would be deemed to be performing in asatisfactory manner and the Commission would impose no additionalnotification requirements. However, in instances where validcomplaints are received…from landowners and the Commissiondetermines that the particular pipeline is not doing an acceptablejob of landowner notification, the Commission should imposeadditional notification/reporting requirements on the specificoffending pipeline.”

Industrials gas customers questioned the need for any changes tothe existing process “since the Commission itself already sends tolandowners notice of any anticipated environmental assessmentprocess, in addition to publicizing notices of all applications andenvironmental assessments in the Federal Register. Likewise,pipelines routinely contact landowners from an early stage in orderto seek rights-of-way.” The Process Gas Consumers (PGC) Group, theAmerican Iron and Steel Institute and the Georgia Industrial Groupbelieve changes to existing regulations could impose “additionalprocedural burdens” on the certificate process [RM98-17].

The Iowa Utilities Board, a state agency that oversees pipelinesin the state and sets standards for land restoration after pipelineconstruction, favors landowner notification prior to the filing ofan application at FERC, saying that this would enable pipelines to”establish an early rapport” with landowners, eliminate “resentmentand rumor” and make “appropriate modifications” to their projectsearly on. It recommended that landowners be alerted 90 days beforethe actual filing.

On a more narrow issue, the El Paso pipelines don’t believepipes should have to submit to formal notification procedures toacquire additional temporary work space for certain replacementprojects where additional damaged pipe or safety hazards arediscovered.

The pipelines and industrials further said they would object toany move by FERC to classify residential areas as sensitiveenvironmental areas, causing it to weigh project impact on theseareas in the same manner as the more traditional natural resourceareas – endangered species habitats, historical places, wetlandsand designated wilderness areas.

Industrial gas customers believe “it would be a profound mistakeimplicitly to elevate NIMBY to a legal principle, particularlysince utility lines (water, gas) are routinely built across privateproperty with minimal impact on landowners…” The El Pasointerstates said such a move by FERC would subject pipelines to the”whims of individual landowners, homeowners’ associations and/orcity councils.”

On a separate issue, some parties urged FERC to allocateresources to “significantly expand” the scope of its monitoring ofpost-certificate construction practices, as well as to give greaterconsideration to powerline safety when routing decisions are madefor pipeline projects – many of which are located on or adjacent toexisting electric transmission rights-of-way.

“The FERC’s lack of attention to powerline safety when routingdecisions are made is a significant problem. However, an equallygreat problem…is the absence of any FERC regulatory oversightduring the actual construction process,” said Central Maine Power.

Environmentalist Anne Marie Mueser, chairman of the GASPCoalition, agreed that a “wide gulf” existed between what theCommission spells out in its certificates and the constructionpractices that take place in the field. As a remedy, she suggested”the use of performance standards for environmental mitigationmeasures, required on-the-job training for contractors and allconstruction personnel, along with timely and rigorous enforcementof permit requirements.” At the December conference, she said GASPwill present a “practical proposal for monitoring pipelineconstruction.”

Susan Parker

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