The proposed rulemaking calling for a relaxation of FERC’srestrictive policy for off-the-record communications is “essentialto providing timely and adequate information” for the Commissionstaff to conduct environmental reviews of proposed pipelineprojects, the Interstate Natural Gas Association of America (INGAA)said last week.

But it took issue with two provisions in the initiative,contending they would “allow parties or non-parties to communicatewith the Commission after a draft environmental impact statement(DEIS) is issued, perhaps even after the comment period on the DEIShas passed.” Unless such post-DEIS communications were disclosedimmediately, the pipeline and other interested parties would learnof them only when the final environmental impact statement (FEIS)is issued, INGAA said.

The pipeline group called on FERC to revise the proposals so all communication received post-DEIS would be treated as a commenton the DEIS and disclosed promptly. “The pipeline and allinterested parties should be given an opportunity to respond to thecommunication,” INGAA told FERC [RM98-1].

The pipeline group’s comments were in response to a notice ofproposed rulemaking (NOPR) issued in mid-September, which, amongother things, would permit Commission staff to engage inoff-the-record communications while preparing an environmentalassessment or a DEIS. In addition, staff could have ex partediscussions with landowners, who aren’t party to the proceedingsthen, but whose property may be affected by pending proceedings.The NOPR also would permit the Commission to request informationfrom federal, state or local agencies, which aren’t parties to aspecific proceeding, or in cases where FERC and an outside agencyshare jurisdiction.

All information received as a result of these proposedexemptions to FERC’s ex parte rules, however, would be required tobe included in the “decisional record” of a proceeding. Notice thenwould be provided to parties to give them an opportunity to reviewand respond to the off-the-record communications.

Overall, INGAA said the Commission has taken a “balancedapproach” to revising its regulations governing ex partecommunications, but it believes there is room for furtherimprovement. For example, given that FERC holds the separation ofthe functions of its decisional and non-decision staff”sacrosanct,” it should reaffirm in the NOPR that the two shouldnot be permitted to engage in “prohibited communications incontested proceedings,” the pipeline group noted.

Separately, the Environmental Protection Agency (EPA) voiced itssupport for FERC’s effort to relax its restrictions on ex partecommunications. “We are [especially] encouraged by the proposal toexempt communications with other federal, state and local agenciesin matters where there is shared jurisdiction with the Commissionfrom the prohibition against off-the-record communications,” theagency said.

However, it noted, “it is not clear why the Commission hasproposed to limit this exception to only those circumstances wherethe federal agency is not a party to the relevant Commissionproceeding.” Such a limitation “appears to contradict the intendedgoal of encouraging communication, cooperation and collaborationbetween agencies, and we recommend that it be eliminated in thefinal rule.”

In addition, while the EPA favors FERC’s proposal to exemptcommunications relating to the preparation of NationalEnvironmental Policy Act documentation from ex parte restrictions,”we recommend that the final rule clarify that the scope of theexception is broad and is intended to include communicationsregarding both procedural and substantive aspects of preparing theenvironmental documentation,” the agency said.

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