[Federal Register Volume 64, Number 93 (Friday, May 14, 1999)]
[Rules and Regulations]
[Pages 26572-26621]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11247]
[[Page 26571]]
_______________________________________________________________________
Part III
Department of Energy
_______________________________________________________________________
Federal Energy Regulatory Commission
_______________________________________________________________________
18 CFR Part 2 et al.
Revision of Existing Regulations Governing the Filing of Applications
for the Construction and Operation of Facilities To Provide Service or
To Abandon Facilities or Service Under Section 7 of the Natural Gas
Act; Final Rule
Federal Register / Vol. 64, No. 93 / Friday, May 14, 1999 / Rules and
Regulations
[[Page 26572]]
DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Parts 2, 153, 157, 284, 375, 380, and 385
[Docket No. RM98-9-000; Order No. 603]
Revision of Existing Regulations Governing the Filing of
Applications for the Construction and Operation of Facilities To
Provide Service or To Abandon Facilities or Service Under Section 7 of
the Natural Gas Act
April 29, 1999.
AGENCY: Federal Energy Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The Federal Energy Regulatory Commission is amending the
regulations codifying the Commission's responsibilities under the
Natural Gas Act and Executive Order 10485, as amended. The Commission
is updating its regulations governing the filing of applications for
the construction and operation of facilities to provide service or to
abandon facilities or service under section 7 of the Natural Gas Act.
The changes are necessary to conform the Commission's regulations to
the Commission's current policies.
DATES: These regulations become effective June 14, 1999.
ADDRESSES: Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington DC 20426.
FOR FURTHER INFORMATION CONTACT:
Michael J. McGehee, Office of Pipeline Regulation, Federal Energy
Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202) 208-2257.
Carolyn Van Der Jagt, Office of the General Counsel, Federal Energy
Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202) 208-2246.
SUPPLEMENTARY INFORMATION: In addition to publishing the full text of
this document in the Federal Register, the Commission also provides all
interested persons an opportunity to inspect or copy the contents of
this document during normal business hours in the Public Reference Room
at 888 First Street, NE., Room 2A, Washington, DC 20426.
The Commission Issuance Posting System (CIPS) provides access to
the texts of formal documents issued by the Commission from November
14, 1994, to the present. CIPS can be accessed via Internet through
FERC's Home page (http://www.ferc.fed.us) using the CIPS Link or the
Energy Information Online icon. Documents will be available on CIPS in
ASCII and WordPerfect 6.1. User assistance is available at 202-208-2474
or by E-mail to [email protected].
This document is also available through the Commission's Records
and Information Management System (RIMS), an electronic storage and
retrieval system of documents submitted to and issued by the Commission
after November 16, 1981. Documents from November 1995 to the present
can be viewed and printed. RIMS is available in the Public Reference
Room or remotely via Internet through FERC's Home page using the RIMS
link or the Energy Information Online icon. User assistance is
available at 202-208-2222, or by E-mail to [email protected].
Finally, the complete text on diskette in WordPerfect format may be
purchased from the Commission's copy contractor, RVJ International,
Inc. RVJ International, Inc. is located in the Public Reference Room at
888 First Street, NE., Washington, DC 20426.
I. Introduction
The Federal Energy Regulatory Commission (Commission) is amending
its regulations governing the filing of applications for certificates
of public convenience and necessity authorizing the construction and
operation of facilities to provide service or to abandon facilities or
service under section 7 of the Natural Gas Act (NGA),1 and
amending the blanket certificate under subpart F of part 157. The
Commission has determined that portions of its regulations need to be
revised and/or eliminated in order to reflect the current regulatory
environment of unbundled pipeline sales and open-access transportation
of natural gas. The revisions would: (1) Bring the existing regulations
up-to-date to match current policies; (2) eliminate ambiguities and
obsolete language; (3) make the regulations more germane and less
cumbersome; and (4) reduce the existing reporting burden by a total of
8,284 hours.
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\1\ 15 U.S.C. 717b.
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Additionally, the Commission is consolidating and clarifying its
current practice concerning the reporting requirements needed for its
environmental review of pipeline construction projects under the
National Environmental Policy Act of 1969.2 Generally, the
Commission's existing requirements for the environmental review process
are outdated, located in several different parts of the Commission's
regulations, or, in practice, have been replaced with a preferred
format that is not in the Commission's regulations, but is now used
routinely by jurisdictional companies. The new regulations will provide
better guidance to the regulated industry concerning what particular
information the Commission needs to conduct a timely environmental
analysis.
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\2\ 42 U.S.C. 4321-4370a.
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II. Background
Since the enactment of the Natural Gas Policy Act of 1978 (NGPA)
3 and the Natural Gas Wellhead Decontrol Act of 1989
(Decontrol Act),4 the natural gas industry has undergone
significant changes. Historically, the Commission regulated natural gas
producers and wellhead prices and interstate pipelines served as gas
merchants. Pipelines now generally provide only open-access
transportation services and the Commission no longer regulates
producers and wellhead prices. The Commission implemented these changes
through its rulemaking process 5 and through issuing policy
statements.6
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\3\ 15 U.S.C. 3301-3432 (1978).
\4\ Pub. L. 101-60, 103 Stat. 157 (1989).
\5\ See Regulation of Natural Gas Pipelines After Partial
Wellhead Decontrol, Order No. 436, 50 FR 42408 (November 5, 1985)
FERC Stats. and Regs. para. 30,665 (October 9, 1985)(Order No. 436
instituted open-access, non-discriminatory transportation to permit
downstream gas users to buy gas directly in the production area and
to ship that gas via interstate pipelines); Order Implementing the
Natural Gas Wellhead Decontrol Act of 1989, Order No. 523, 55 FR
17425 (April 25, 1990) FERC Stats. and Regs. para. 30,887 (April 18,
1990) and Removal of Outdated Regulations Pertaining to the Sales of
Natural Gas Production, Order No. 567, 59 FR 40240 (August 8, 1994)
FERC Stats. and Regs. para. 30,999 (July 28, 1994)(in Order Nos. 523
and 567, the Commission generally amended its regulations to delete
those pertaining to its jurisdiction over the sale of natural gas
production); and Pipeline Service Obligations and Revisions to
Regulations Governing Self-Implementing Transportation; and
Regulation of Natural Gas Pipelines After Partial Wellhead
Decontrol, Order No. 636, 57 FR 13267 (April 16, 1992) FERC Stats.
and Regs. para. 30,939 (April 8, 1992)(in Order No. 636, the
Commission adopted regulatory changes to finally complete the
evolution to competition in the natural gas industry by mandating
the unbundling of interstate natural gas sales service from
transportation service, requiring that those services be sold
separately to natural gas purchasers).
\6\ Pricing Policy For New and Existing Facilities Constructed
by Interstate Natural Gas Pipelines, 71 FERC para. 61,241 (1995).
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On September 30, 1998, the Commission issued a Notice of Proposed
Rulemaking (NOPR),7 proposing to amend the Commission's
regulations to conform them to its existing policies and procedures.
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\7\ Revisions of Existing Regulations Under Part 157 and Related
Sections of the Commission's Regulations Under the Natural Gas Act,
63 FR 55683 (October 16, 1998), IV FERC Stats. and Regs. para.
32,535 (September 30, 1998).
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This Final Rule serves four basic purposes. First, it will remove
certain
[[Page 26573]]
regulations that are outdated and obsolete including, among other
things, regulations that pertain to producer related activities made
obsolete by the Natural Gas Wellhead Decontrol Act of 1989 and
regulations that pertain to a pipeline's merchant function.
Additionally, it will remove various regulations that pertain to
certain activities that were performed under the blanket certificate
issued in subpart F of part 157 that are now performed under part 284
of the Commission's regulations. The Final Rule will also remove
certain outdated and/or unnecessary filing requirements and reports.
Second, the Final Rule clarifies and updates certain aspects of the
regulations, for example Secs. 2.55, 157.10 and 157.202, to conform
them to the Commission's present policies. Third, it modifies certain
existing regulations to aid in expediting the Commission's procedures
for constructing certain facilities. Finally, the Final Rule replaces
certain outdated environmental filing procedures with commonly followed
industry practice.
In essence, the Final Rule makes numerous changes to the
Commission's regulations in an effort to streamline the certificate
process. First, it requires that pipelines file more complete
applications by including the information described in the checklist in
appendix A to part 380. The checklist specifies the minimum content of
an acceptable environmental report. This information is important for a
pipeline to include when it files an application because it ensures
that the staff has the minimum environmental information necessary to
begin its review. Since the environmental review is generally the most
time consuming part of the certificate process, it is critical for
pipelines to follow the checklist in appendix A to part 380. A pipeline
can avoid rejection or unnecessary delays associated with requests for
additional information by including the minimum checklist information
in its initial application.
The Final Rule also incorporates a number of changes from the
proposals in the NOPR in response to the comments filed. The following
list details some of the changes in the final rule:
--Section 2.55(a) now recognizes that facilities installed along with
new transmission facilities will qualify as auxiliary, as long as
pipelines provide the Commission with a description of the auxiliary
facilities at least 30 days in advance of their installation;
--Sections 153.21 and 157.8, now states that an application will be
rejected if it ``patently fails to comply with applicable statutory
requirements or with applicable Commission rules, regulations, and
orders for which a waiver has not been granted,'' instead of if it
``does not conform to the requirements of this part;''
--Section 157.10 allows pipelines five business days instead of two
business days as proposed to provide voluminous or hard to reproduce
materials to parties that request such information;
--Section 157.20 allows pipelines to notify the Commission of the
reason that an end-user/shipper cannot flow gas within 10 days after
the expiration of the time specified in the order, rather than 30 days
before expiration of the date;
--Section 157.202(b)(2)(i) now includes certain compression
replacements, in addition to mainline, and lateral replacements in the
definition of eligible facilities;
--Section 157.202(b)(6) now includes situations involving natural
forces beyond the pipeline's control in the definition of miscellaneous
rearrangement;
--Section 157.208(f)(2) allows pipelines to use the prior notice
procedures to increase the Maximum Allowable Operating Pressure of
lateral lines that were originally certificated under both case-
specific section 7(c) certificates and the Part 157 blanket
certificate;
--Section 157.215 clarifies that injection, withdrawal and observation
wells can be drilled for reservoir testing purposes; and
--Section 157.217 now clarifies that pipelines are able to switch
customers from individually certificated section 7(c) transportation
rate schedules to part 284 blanket certificate transportation rate
schedules.
Additionally at the request of commenters, the Final Rule: (1)
Provides more guidance on the Director of the Office of Pipeline
Regulation's (OPR) ability to dismiss unsubstantiated protests to prior
notice application; (2) clarifies that the environmental compliance in
Sec. 157.206(b) only applies to activities involving ground disturbance
or changes to operational air and noise emissions; (3) reduces the
reporting requirements contained in Sec. 157.208(e); and (4) codifies
the Commission's policy that prohibits pipelines from segmenting
projects under their blanket certificates to meet the Commission's
spending limits.
These changes will help clarify the regulations, bring them up to
date and speed up the processing of pipeline construction and
abandonment applications.
III. Discussion
A. Part 2--General Policy and Interpretations
Part 2 contains the Commission's statements of general policy and
interpretations regarding the NGA, National Environmental Policy Act
(NEPA), the Economic Stabilization Act of 1970 and Executive Orders
11615 and 11627, the NGPA and the Public Utility Regulatory Policies
Act of 1978.
Section 2.55--Definition of Terms Used in NGA Section 7(c)
Section 2.55(a)--Auxiliary Facilities Constructed With Newly Proposed
Jurisdictional Facilities
Section 2.55 defines facilities that are excluded from the
requirements of section 7(c) of the NGA and may, therefore, be
constructed without additional certificate authority. Section 2.55(a)
exempts auxiliary facilities, such as valves, drips, yard and station
piping, and cathodic protection equipment, from NGA section 7(c)
authority. The NOPR clarified that auxiliary facilities intended to be
installed at the same time and related to newly proposed jurisdictional
facilities do not qualify for the exemption under Sec. 2.55(a) since
the exemption is limited to installations which are designed
specifically to improve the operation of an existing transmission
system.
Comments: El Paso Energy Corporation (El Paso) 8 states
that the proposal creates arbitrary distinctions among facilities and
would unduly restrict pipeline operations. El Paso contends that
identical facilities would be considered jurisdictional or
nonjurisdictional based solely upon when they were constructed. This
would subject new jurisdictional yard and station piping to abandonment
authorization, while identical existing facilities would need no such
authorization. According to El Paso, Enron Interstate Pipelines (Enron)
9 and Koch Gateway Pipeline Company (Koch Gateway), such a
finding would increase the burden on pipelines by requiring them to
keep records of all such facilities in order to abandon the
jurisdictional ones when necessary. These parties believe that such
facilities
[[Page 26574]]
should maintain their Sec. 2.55(a) nonjurisdictional status. They argue
that any other finding would be inconsistent with the objective of
making the regulations less cumbersome and unnecessarily increase the
administrative burden on both the pipeline and the Commission.
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\8\ El Paso consists of El Paso Natural Gas Company, East
Tennessee Natural Gas Company, Midwestern Gas Transmission Company,
Mojave Pipeline Company, and Tennessee Gas Pipeline Company.
\9\ Enron consists of Northern Natural Gas Company, Florida Gas
Transmission Company and Black Marlin Pipeline Company.
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El Paso argues that the exemption in Sec. 2.55(a) should apply to
all auxiliary-type facilities, whether installed in connection with new
or existing transmission facilities. It requests that pipelines, at a
minimum, should not be required to obtain section 7(b) authority to
remove or replace any auxiliary-type facility installed in connection
with new transmission facilities.
Williston Basin Interstate Pipeline Company (Williston Basin)
contends that auxiliary facilities associated with newly proposed
facilities constructed under section 7(c) that do not cause ground
disturbance should be exempt under Sec. 2.55(a).
The Williams Companies (Williams) 10 suggests that the
following clause be added to the end of Sec. 2.55(a):
\10\ Williams consists of Kern River Gas Transmission Company,
Northwest Pipeline Corporation, Texas Gas Transmission Corporation,
Transcontinental Gas Pipe Line Corporation, and Williams Gas
Pipelines Central, Inc.
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Facilities constructed along with new transmission facilities do
not qualify as auxiliary installations for the purposes of this
section until such facilities and the related transmission
facilities are complete and made available for service.
Williams believes that this would clarify that after this type
facility is in service, it qualifies as an ``auxiliary facility'' for
purposes of future modifications or abandonments.
Commission Response: As stated, the current Sec. 2.55(a) limits the
installation of auxiliary facilities to facilities installed to an
existing transmission system. The NOPR proposed to exclude any
auxiliary-type facilities constructed in conjunction with new pipeline
facilities from the NGA exemption in Sec. 2.55(a). As the commenters
point out, this would establish dual classifications for similar
facilities and would create uncertainty regarding the nonjurisdictional
status of such facilities. Accordingly, in order to treat auxiliary
facilities constructed in conjunction with new transmission facilities
the same as auxiliary facilities constructed as part of an existing
transmission system, the Commission will modify the definition of
Sec. 2.55(a) to include facilities constructed in conjunction with new
pipeline facilities.
However, we are concerned that adding such facilities to the
project after certification but before service begins, without notice
or identification of such facilities, will not allow the Commission to
environmental review all facilities related to a project proposed for
construction under section 7(c) of the NGA. We will add wording to
Secs. 2.55(a)(2) and 380.12(c)(2) to ensure that the Commission is
aware of any facilities scheduled for installation on a newly
certificated facility prior to it being put into service. We believe
this is necessary because certain aboveground auxiliary facilities
involve substantially different environmental impacts than a pipeline
by itself. These impacts may be of great concern to affected
landowners. Therefore, in order for the Commission to review all
facilities related to a proposed construction project for new
facilities, we will require that the pipelines include a description of
the facilities in the environmental report required by
Sec. 157.14(a)(6-a) of the Commission's regulations. For newly
authorized facilities not yet in service, we will require that the
pipeline notify the Commission of the proposed installation of the
auxiliary facilities at least 30 days prior to the installation of such
facilities.
Section 2.55(b)--Construction Area for Replacement Facilities
The NOPR proposed to revise Sec. 2.55(b)(1)(ii), concerning the
replacement of existing facilities, to clarify that this section only
applies to replacements that involve construction within the
certificated right-of-way. It also proposed a new appendix A to part 2
which gave guidance on the size of the construction right-of-way (ROW)
and extra workspace which could be used for construction under
Sec. 2.55(b). These guidelines apply only where there are no records or
other tangible evidence of what areas were used in the original
construction.
Comments: This proposal generated many comments from the industry,
most expressing the concern that the proposal is too strict and does
not take into account many realities that pipelines face with
replacement construction projects. The Interstate Natural Gas
Association of America (INGAA) contends that where a pipeline's
existing right-of-way (ROW) does not cover the area outside the ROW
proposed for use, pipelines will secure such additional ROW from
affected landowners prior to commencing any construction activities.
For example, INGAA states that access to a facility to be replaced will
be different because original equipment bridges and other ROW accesses
have been restored, or construction may require working on the opposite
side of the original ditch because loop lines may have rendered the
original side unsafe. In addition, INGAA states that Occupational
Safety and Health Administration (OSHA) rules require more workspace
for safe construction. Great Lakes Gas Transmission Limited Partnership
(Great Lakes), Questar Pipeline Company (Questar) and Williston Basin
have similar concerns. These parties contend that the proposed
regulations are not clear as to whether replacements are limited to the
specific ROW historically attached to the facility being replaced or
whether any existing, certificated ROW or previously disturbed on and
off-site temporary work areas may by used for the replacement. They
argue that pipelines should be able to use any previously disturbed
areas because they would have already been reviewed environmentally by
the Commission, or other federal, state or local agencies exercising
jurisdiction. They urge the Commission not to set workspace limits
based merely on the size of the replacement pipeline, since other
factors such as construction technique, soil type and terrain are
involved. In addition, these parties contend that since section 2.55
does not confer eminent domain, landowners would be protected.
Duke Energy Pipelines (Duke Energy) 11 contends that a
one-size-fits-all approach fails to address additional work space
needed for termination points, such as turn-arounds, which would not
have been termination points during the original construction. It
claims this approach also fails to address restrictions due to adjacent
newer pipeline, larger diameter pipeline, new environmental
restrictions such as topsoil segregation, and similar changes that have
occurred since original construction.
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\11\ Duke Energy includes Algonquin Gas Transmission Company,
Panhandle Eastern Pipe Line Company (Panhandle), Texas Eastern
Transmission Corporation, and Trunkline Gas Company (Trunkline).
Duke Energy states that it recently announced the sale to CMS Energy
of Panhandle and Trunkline.
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El Paso and Enron argue that the appendix A limitation of a 75-foot
ROW for pipelines larger than 12 inches is too restrictive. They
propose that the Commission revise appendix A to implement a more
flexible approach for determining the appropriate amount of ROW. El
Paso suggests that appendix A provide that replacements involving 30
inch or larger pipeline can use up to 100 feet of ROW, while Enron
proposes that 100 feet of ROW is appropriate for
[[Page 26575]]
replacements involving 16 inch or greater pipeline. According to El
Paso, such space is needed because OSHA requires deeper and wider
trenches for larger pipelines.
In order to obviate the Commission's concern that the replacement
activities were not within the original certificated footprint, INGAA
proposes to add a new paragraph (e) to new appendix A, part 2. New
paragraph 2(e) is proposed to read:
If not located within the areas described above, pipe or
equipment storage yards and temporary construction trailers should
be located in previously graded or graveled areas.
INGAA argues that where multiple lines exist within an existing ROW
corridor, siting of new replacement facilities should be allowed in any
portion of the existing certificated or maintained ROW, whether or not
that ROW was the one certificated for the replacement facility or not.
Since the entire ROW has been disturbed and dedicated for use by the
pipeline, use of any portion of such ROW would be consistent with the
initial finding that construction was in the public convenience and
necessity.
INGAA seeks clarification that replacement facilities not
qualifying under Sec. 2.55(b) because of the ROW issue would qualify as
eligible facilities under Sec. 157.208(a).
Michigan Gas Storage Company (Michigan Gas) asks that the
Commission clarify or expand on the requirement in Sec. 2.55(b)(1)(ii)
that replacement facilities have a substantially ``equivalent designed
delivery capacity'' as the facilities being replaced. Michigan Gas
states that it is not clear whether, in the context of storage wells,
the term refers to daily deliverability or seasonal cyclic capacity or
both. Michigan Gas further states that for transmission facilities, it
is not clear whether this term applies to daily design capacity or to
maximum capacity as used in Sec. 157.14(a)(7) and (8).
Commission Response. As stated, several commenters request that the
Commission expand Sec. 2.55(b) to allow pipelines to construct
replacement facilities and/or use areas outside of the existing ROW for
additional work space. However, we note that acquiring additional ROW
from landowners raises issues associated with the Commission's
landowner notification proceeding in Docket No. RM98-17-000. We do not
believe it is appropriate to expand the pipeline's ability to acquire
additional property from landowners outside of the Commission's review
before we resolve the issues raised in the landowner notification
proceeding. Accordingly, we will continue to follow Commission policy
and limit the pipeline's use of property to construct facilities under
Sec. 2.55 to the existing ROW.12
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\12\ See NorAm Transmission Co., 70 FERC para.61,030 (1995).
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Appendix A to part 2 defines current policy for the workspace
area.13 Current Policy requires that replacement facilities
must be placed in the existing ROW. The Commission believes that the
work spaces designated in the appendix A are adequate for the general
case and will be adequate for most situations.
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\13\ See, March 15, 1995 letter from the Director of OPR to
Tennessee Gas Pipeline Company in Docket No. CP95-189-000.
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While we are not allowing additional ROW width under Sec. 2.55, we
are not limiting ROW width with respect to construction under any other
part of the regulations. The staff's ``Upland Erosion Control and
Mitigation Plan'' and ``Wetland and Waterbody Mitigation Procedures''
specify guidelines for ROW width, but the applicant can propose
different ROW widths appropriate to the project. The Commission will
determine if the proposed widths are justified on a case-by-case basis.
INGAA has filed a study concerning ROW needs. We will take this
study under consideration when we review project-specific justification
for proposed ROW widths.
Miscellaneous Sec. 2.55 Issues
While we proposed no changes to the reporting requirements in
Sec. 2.55(b)(4), Williams contends that the one-time report in
Sec. 2.55(b)(4)(i) should be deleted, consistent with deletions of
other obsolete reports. We agree. This report relates to replacements
commenced between July 14, 1992 and November 9, 1992 and is no longer
relevant and will be deleted.
Williston Basin asks the Commission to clarify whether very minor
replacements need to be included in the annual report required in
Sec. 2.55(b)(4)(ii). We clarify that any facility, regardless of size
needs to be reported, unless, as the regulation states, the facility is
an above-ground replacement that did not involve compression or the use
of earth-moving equipment.
Williston Basin also seeks a clarification that the reference to
``earthmoving equipment'' in Sec. 2.55(b)(4)(ii) means mechanical
equipment. We clarify that the term ``earthmoving equipment'' is
intended to mean motor-driven equipment used for ground disturbance.
As to the clarification Michigan Gas seeks, the phrase ``equivalent
designed delivery capacity,'' in the context of storage wells refers to
both the daily deliverability and the seasonal cyclic capacity. In the
context of transmission facilities, it refers to peak day design
capacity, not maximum capacity.
B. Part 153--Application for Authorization To Export or Import Natural
Gas
Although this part does not currently require that filings be made
electronically, the Commission intends that this part will be subject
to the electronic filing requirements currently being established in
the proceeding in Docket No. PL98-1-000.
Section 153.21--Conformity With Requirements
Section 153.21(b) sets forth the criteria for the rejection of
filings made under this subpart. The NOPR proposed to revise this
section to authorize the Director of OPR to reject applications that do
not conform to the requirements of this part within 10 days of filing,
without prejudice to the applicant's refiling a complete application.
Comments: The Natural Gas Supply Association (NGSA) states that the
proposed revision is silent as to whether rejection will have any
bearing on acceptance of a subsequent application that does not conform
with Commission regulations. NGSA states that the related Sec. 157.8
allows for rejection without prejudice to refiling, and proposes that
Sec. 153.21(b) be modified by adding ``without prejudice.'' NGSA also
proposes that the Commission not dismiss an application under
Sec. 153.21(b) unless the applicant has been given notice of the
defects and allowed an opportunity to cure those defects.
Commission Response: We intend for pipelines to file complete
applications or face the prospect of having their proposal rejected.
However, our intent is to reject such applications without prejudice to
pipelines refiling completed applications. We will also clarify our
standards for rejection so that an application will not be rejected
unless it ``patently fails to comply with applicable statutory
requirements or with applicable Commission rules, regulations, and
orders for which a waiver has not been granted.''
[[Page 26576]]
C. Part 157--Applications for Certificate of Public Convenience and
Necessity and for Orders Permitting and Approving Abandonment Under
section 7 of the Natural Gas Act
Subpart A--Applications for Certificates of Public Convenience and
Necessity and for Orders Permitting and Approving Abandonment of
Service under section 7 of the Natural Gas Act, as Amended, Concerning
any Operation, Sales, Service, Construction, Extension, Acquisition or
Abandonment
Section 157.6--Applications; General Requirements
The NOPR proposed to add a new Sec. 157.6(b)(8), which will require
pipelines to file the information necessary to make an upfront
determination on the rate treatment of new construction projects in
accordance with the Commission's Statement of Policy in Docket No.
PL94-4-000.14
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\14\ Pricing Policy For New And Existing Facilities constructed
By Interstate Natural Gas Pipelines, 71 FERC para.61,241 (1995).
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Comments: Enron states that requiring information regarding the
detailed rate impact analysis by rate schedule and zone is over broad
and should be required only where an applicant is seeking rolled-in
rate treatment.
INGAA and Koch Gateway submit that the requirement that ``an
analysis reflecting the impact of the fuel usage by zone resulting from
the proposed expansion'' should be clarified to reflect that not all
pipelines employ a zoned fuel rate. Koch Gateway proposes that
Sec. 157.6(b)(8)(ii) be revised to read as follows: ``* * * and an
analysis reflecting the impact of the fuel usage resulting from the
proposed expansion project (including by zone, if applicable).''
Commission Response: While the NOPR preamble is not specifically
clear on when the detailed rate impact analysis should be filed, the
proposed regulation states that the detailed information is needed only
``if the applicant does not propose to charge incremental rates.'' We
will clarify our position and the proposed regulation. We clarify that
pipelines are required to file the information necessary to make an
upfront determination on the rate treatment of new construction
projects only when they propose rolled-in rates or when they propose
incremental rates that are below the maximum part 284 rate. In both
these cases, the same implications involving the initial rate
established by the Commission and the prospective rate impact apply.
Thus, the information required in Sec. 157.6(b)(8) is necessary for the
Commission to make a proper determination regarding the proposed rate
treatment in both these instances. However, pipelines need not file the
information in proposals where it seeks incremental rates at or above
the maximum effective part 284 rate.
Further, we note that Koch Gateway's revision is appropriate and
will be adopted. The NOPR did not intend for pipelines to submit
information that was not relative to their system's rate structure. To
the extent that pipelines employ zoned rates, they must submit the
requested information. If a pipeline employs a postage stamp rate or
some other non-zoned rate structure, it does not need to submit such
information on a zone basis.
Section 157.8--Acceptance for Filing or Rejection of Applications.
The NOPR proposed to amend this section to authorize the Director
of OPR to reject applications that do not conform to the requirements
of this part within 10 days of filing, without prejudice to the
applicant's refiling a complete application.
Comments: Duke Energy and National Fuel Gas Supply Corporation
(National Fuel) contend that the proposal is not consistent with the
existing authority the Director of OPR has to reject filings. They
argue that the existing authority to reject filings in
Sec. 375.307(b)(2) applies to tariff and rate schedule filings that
automatically go into effect within 30 days unless the Commission takes
action. Further, they argue that this rejection only applies if the
filing ``patently fails to comply with applicable statutory
requirements and with all applicable Commission rules, regulations, and
orders for which a waiver has not been granted.'' Similarly, they state
that Sec. 375.307(e)(6) provides for the rejection of prior notice
applications which ``patently fail to comply with the provisions of
Sec. 157.205(b).'' However, they contend that the proposal to reject
certificate applications contains no minimum legal standards, since
rejection can occur if an application does not conform to the
requirements of part 157.
Duke Energy, Great Lakes, Indicated Shippers,15 and
National Fuel all contend that the Commission must identify any
deficiencies in an application and allow for the deficiencies to be
remedied before a filing is rejected. Duke Energy specifically proposes
that instead of rejecting an application within 10 days, a deficiency
letter should be issued within 10 days, with a subsequent 10 days to
cure. Duke Energy contends that this will not increase the burden on
staff since Sec. 385.2001 requires a rejection letter indicating the
deficiencies. Thus, to the extent that there is some confusion in the
requirements for filing an application, a deficiency notice will
provide a reasonable opportunity for issues to be resolved.
---------------------------------------------------------------------------
\15\ Indicated Shippers consists of Chevron U.S.A., Dynegy
Corporation, Exxon Corporation, Marathon Oil Corporation, and Shell
Offshore, Inc.
---------------------------------------------------------------------------
Indicated Shippers states that if the proposal is adopted, the
Commission should modify Sec. 157.9, the notice provision, to require
that the Commission issue a formal notice of the Director's rejection
in lieu of the official notice of the application. In that way,
interested parties will be notified promptly that there is no need to
intervene and/or protest. Indicated Shippers also contends that the
proposal intends for the Commission to assign the same docket number to
a resubmitted application. Therefore, the Commission should establish a
time limit for resubmission of an application, rather than leave the
docket open.
Enron and INGAA are concerned that the proposed language could be
interpreted to mean that a filing could be rejected for incomplete
environmental reports, which are incomplete for any reason other than
denial of access to lands, even if all of the minimum checklist items
are provided. They propose that the Commission clarify in section 157.8
that a filing will not be rejected if the minimum checklist provisions
have been met.
Commission Response: We will revise our proposal so that the
standards for rejecting certificate filings are the same as those the
Director of OPR applies in rejecting filings under Sec. 375.307(b)(2)
and (e)(6). Under those sections, a filing will not be rejected unless
it ``patently fails to comply with applicable statutory requirements
and with all applicable Commission rules, regulations, and orders for
which a waiver has not been granted.'' We will incorporate this
language into Secs. 153.21 and 157.8. In addition, we will view an
application as ``patently'' deficient if it fails to include the
minimum checklist of environmental information, as well as the
information required in part 157. Thus, pipelines are put on notice
that they must file the information requested or their applications
will be subject to rejection. The Commission will not expend its
resources on patently deficient applications.
Requests for a notice and cure period prior to rejecting any filing
are denied. The minimum environmental checklist and the information
required in part 157 do not include new or unique
[[Page 26577]]
requirements. We are codifying our long-standing environmental
procedures in order to help ensure more timely processing of
applications by requiring that pipelines no longer file patently
deficient applications. As such, we will no longer send deficiency
letters seeking the minimum checklist information required of filings.
However, if an application is rejected, the Director of OPR will send a
letter indicating the deficiencies and reasons for rejection. In such a
circumstance, an applicant will have full knowledge of the deficiencies
in its application and the steps necessary to comply with the
Commission's filing requirements. Also, the Director of OPR's rejection
letter will be on CIPs and potential interveners should take notice.
We disagree with Indicated Shippers' belief that a resubmitted
application be redocketed with the same number as the rejected
application. We are conforming Sec. 157.8 to the existing regulations
in Sec. 153.21(b) that require a new docket number for rejected
applications that are resubmitted. The Commission prefers to have
finality in its docketing system. In addition, the Commission's
regulations give no administrative or other procedural benefit to
applicants because of the docket number assigned to a particular
project.
Finally, we note that INGAA proposes the following revision:
However, an application will not be rejected solely on the basis of
(1) environmental reports that are incomplete because the company
has not been granted access by the affected landowner(s) to perform
required surveys, etc., or (2) environmental reports that are
incomplete, but where the minimum checklist requirements of part
380, appendix A have been met.
We agree with INGAA's proposed revision and will change Sec. 157.8
accordingly. We recognize that not all environmental information is
available at the time of filing. However, the information in the
checklist is the minimum that must be submitted at the time of filing.
Section 157.9--Notice of Application
The NOPR proposed to issue a notice within 10 days of filing.
Comments: The Process Gas Consumers Group, the American Iron and
Steel Institute, and the Georgia Industrial Group (Process Gas
Consumers) are concerned that abandonment of laterals will strand end
users behind LDCs. They want to strengthen the provisions to require
that notices should be actually delivered to all of the pipeline's
shippers who have taken service through the lateral or delivery point
in the last five years. In addition, they argue that notice should be
posted on the pipeline's EBB and that applications subject to
delegation orders have as complete a notice as abandonment applications
going to the Commission, including maps of the facilities to be
abandoned. They contend that such requirements will ensure due process
rights of shippers which directly or indirectly, or through released
capacity, take service through the pipeline.
Commission Response: We believe that the Commission's current
procedure for noticing certificate applications, including prior notice
applications filed under Sec. 157.205, more than adequately identifies
the nature and content of each filing. Requiring that notices be
delivered to all shippers that have used certain facilities during the
past five years would prove to be extremely unwieldy, burdensome, and
administratively inefficient. We see no basis why shippers who are no
longer on the pipeline system should be notified. We do not intend to
create a separate class of applications that are treated differently
than other filings. Moreover, notices of applications, and applications
themselves are available for electronic viewing at the Commission's
website at www.ferc.fed.us/online/rims.htm. Thus, Process Gas
Consumers, and all others, will be able to view in total all
applications filed with the Commission.
Section 157.10--Interventions and Protests
The NOPR determined that allowing parties to intervene in response
to Draft Environmental Impact Statements (EIS) is appropriate. It also
proposed to amend Sec. 157.10 to clarify that pipelines do not have to
serve voluminous or difficult to reproduce materials, such as copies of
environmental information, upon all parties in a proceeding, except as
specifically requested. The NOPR provided that any party requesting a
complete copy of a filing must be served with one within two business
days.
Comments: INGAA also seeks clarification that the pipeline need
only keep voluminous or difficult to reproduce material, such as
complete sets of environmental information, available to the public
until the construction application is no longer pending Commission
action. Similarly, Great Lakes states that it is not clear what
constitutes a ``central location'' for keeping a complete filing. Great
Lakes seeks clarification that this requirement is met if the pipeline
maintains copies, either paper or electronic, at compressor stations
located closest to the project site(s). Williston Basin wants to make
such information available in public building(s) or town(s) near the
vicinity of the job site.
Duke Energy requests that the Commission extend the proposed two
business day time period to provide voluminous or difficult- to-
reproduce material to 10 days. Similarly, Great Lakes seeks to have the
time frame extended from two days to five days. Both parties believe
that numerous requests, the nature of the information, and the fact
that outside consultants may be required to reproduce the material
necessitates more than a two day time frame. The American Public Gas
Association states that parties will need time to evaluate information
once it is received and recommends that the Commission provide 45 days
for interventions to be prepared. El Paso Energy seeks clarification
that companies are not required to provide copies of confidential
material to interveners and will still be able to request confidential
treatment for information under section 388.112. Likewise, Great Lakes
wants clarification that privileged and confidential data are not
required to be provided with any electronic information kept near the
job location.
Process Gas Consumers requests that all notices supply the name,
address and telephone number of an applicant's knowledgeable contact to
allow parties to request an applicant's voluminous material (only
available upon request).
Great Lakes urges the Commission not to expand its current
intervention procedures to allow non-utility agencies to intervene by
notice. The Sempra Energy Companies (Sempra Energy) 16 is
concerned that pipelines will not provide voluminous material timely
and thus, interveners may be not have time to evaluate a filing and
face having their protest dismissed.
---------------------------------------------------------------------------
\16\ Sempra Energy consists of various entities including
Pacific Interstate Transmission Company, Pacific Interstate Offshore
Company, Southern California Gas Company, and San Diego Gas and
Electric Company.
---------------------------------------------------------------------------
The Advisory Council on Historic Preservation (Council) states that
the rule should allow for intervention based on section 106 of the
National Historic Preservation Act (NHPA) the same as intervention is
allowed for NEPA.
Commission Response: As to the Council's request, we note that we
treat section 106 of the NHPA as part of the environmental process.
We agree with INGAA that a pipeline only need keep voluminous
materials available to the public until the application is no longer
pending Commission action, i.e., the order is final and not subject to
rehearing. The
[[Page 26578]]
reason the information is meant to be available to the public in the
first place is so that parties will know all the details of a
particular project in sufficient time to intervene and express any
opinions they may hold.
The Commission will allow pipelines to keep electronic copies of
voluminous material at a central location, such as libraries and like
public buildings, in each county in the project area provided that the
information is easily accessible. Williston Basin's proposal that such
information be made available in public buildings or towns near the job
site appears to present fewer access problems than keeping such
material at the job location. There could be safety or other reasons
that the interested public may not have easy access to materials kept
on the job site. It seems preferable to locate such material in
buildings open to the public with flexible business hours, i.e.,
libraries and like public buildings with evening and weekend hours,
located in each county as close as practicable to the project area to
provide for as much public access as possible.
Various parties object to the proposal that pipelines serve a full
copy of such voluminous or difficult to reproduce material on
requesting parties within two business days and seek a longer time
period. Due to the nature of the material at issue, it seems reasonable
to allow the pipelines more time to reproduce and distribute requested
material. We will require that the pipeline have complete copies of its
application at the above mentioned publicly available building
location(s) in each county affected by the project, either in paper or
electronic format, within three business days of filing an application.
However, we will allow the pipeline five business days from the date of
a request to supply a requesting party with a full copy of the filing.
Since we are requiring that pipelines make complete copies of
applications available publicly, we do not anticipate extensive
individual requests for such copies. However, it is incumbent upon the
pipeline applicant to serve copies of its application to parties
seeking detailed information regarding the proposed project.
Pipelines do not have to supply privileged or confidential material
when serving these copies, nor supply such material with copies
provided near the job location. However, if at a later time, the
Commission or its delegate determines that any claim to privileged or
confidential treatment under Sec. 388.112 is without merit, the
pipeline must serve such material on requesting parties and include
such material with the copies provided near the job location.
We agree with Process Gas Consumers' request that all notices
should supply the name, address and telephone number of the contact
person to allow parties to request an applicant's voluminous material.
We will modify Secs. 157.6(b)(7) and 157.205(b)(5) accordingly.
As to Great Lakes' concern regarding non-utility interveners, the
NOPR did not change the status or rights of any parties intervening in
certificate proceedings. All parties have the same rights and status in
a proceeding before the Commission as they had prior to issuance of the
NOPR.
Sempra Energy's concern is misplaced. The intent in the NOPR was to
limit the OPR Director's authority rejecting unsubstantiated protests
to prior notices filed under the blanket certificate issued in subpart
F of part 157. The Director of OPR's authority does not extend to
rejection of protests to section 7(c) applications filed under subpart
A of part 157. If a pipeline does not provide voluminous material
timely, as required by the regulations, parties can protest and/or file
a complaint. In such a situation, the pipeline risks delaying the
timetable it has established for completing its proposed project.
However, in order to prevent any further misunderstanding of our intent
regarding rejection of protests, we will modify Sec. 375.307(a)(10) to
specifically state that this rejection authority is limited to
unsubstantiated protests to prior notice applications.
Section 157.16--Exhibits Relating to Acquisitions
The NOPR proposed to revise Sec. 157.16(c)(1) to require the
pipeline to include a brief statement explaining the basis or methods
used to derive the related depreciation, depletion and amortization
reserves.
Comments: INGAA is concerned about the change requiring ``* * * a
brief statement explaining the basis or methods used to derive the
related depreciation, depletion or amortization''. It contends that the
proposed change is duplicative of other provisions in Sec. 157.16 and
should be deleted. It argues that the introductory text should provide
the Commission with the information it seeks and that the proposed
revision is unnecessary.
Commission Response: We disagree. The purpose of the change is to
point out a specific area where additional information would facilitate
the processing of an application. While the introductory text of
Sec. 157.16 requires the pipeline to provide a full and complete
explanation of all particulars of the acquisition, this requirement is
very broad and often overlooked with respect to the accumulated
depreciation, depletion and amortization reserve amounts. When this
occurs, the application is delayed because this information must then
be requested from the pipeline.
Section 157.17--Applications for Temporary Certificates in Cases of
Emergency
The NOPR proposed to amend Secs. 157.17(a) and (b) to remove as
outdated the reference to the date the Commission initiated its
electronic filing requirements.
Comments: Great Lakes urges the Commission to use the NOPR to
clarify the circumstances which constitute an emergency under this
section and Sec. 284.262. Great Lakes wants the Commission to clarify
that if an emergency exists, a temporary certificate can be authorized
when construction is necessary to forestall an anticipated loss of
capacity or when a foreseeable facility outage (or other emergency
event) outside a pipeline's control is probable. As an example, Great
Lakes cites naturally occurring changes such as a landslide or riverbed
erosion. A pipeline may deem it prudent to relocate facilities away
from the suspect area before damage occurs. Another example involves
corrosion that will, in short time, breach the pipewall. A pipeline
should be able to immediately repair such a situation as an emergency.
Great Lakes also proposes that Sec. 284.262 be updated to reflect
pipelines' transition from merchants to transporters. Great Lakes
contends that such a change would redefine emergencies outside the
context of a gas supply shortage and make allowances for emergency
facility repairs. Great Lakes suggests that the Commission revise the
self-implementing emergency provisions of Sec. 284.262 to permit 60-day
remedial construction to remedy facility problems which threaten
interruption of transportation, followed by a 45-day prior notice-type
filing for permanent approval to operate the emergency facilities. This
change would allow pipelines to repair facilities over a 60-day period,
and then file a prior notice to obtain permanent authority to operate
emergency facilities.
Finally, Great Lakes states that the Department of Transportation
(DOT) would view a pressure reduction, at least temporarily, as
relieving certain emergency conditions. However, Great Lakes is
concerned that this might not satisfy NGA requirements since the
[[Page 26579]]
pressure reduction could result in a loss of design-day throughput and
an involuntary abandonment of service. Great Lakes seeks clarification
that when a DOT-defined emergency transpires, for purposes of acquiring
a temporary certificate, the emergency will continue until the pipeline
has restored its system to its prior operating condition.
Commission Response: We agree that our emergency regulations should
be updated to recognize that pipelines are now primarily transporters
and not merchants of gas and that pipelines should be able to respond
to imminent emergencies. However, the possibility still exists that a
supply shortfall could precipitate an emergency. Therefore, we will
amend Sec. 284.262 to reflect that emergencies can occur due to
diminution of pipeline supply or capacity, both anticipated and
unanticipated. We clarify that pipelines can repair facilities affected
by an emergency in order to restore capacity for a 60-day period
(subject to an additional 60 day period) followed by a prior notice or
section 7(c) application to obtain permanent authority to operate the
emergency facilities.
We also clarify that in emergency instances where pipelines are
required to reduce operating pressure to satisfy DOT safety standards,
the underlying emergency continues to exist until the pipeline restores
its regular operating conditions. Of course, the continued emergency
status is contingent upon the pipeline complying with the requirements
of sections 157.17 and 284.262.
Section 157.18--Applications To Abandon Facilities or Services;
exhibits
The NOPR proposed to add an explicit statement that makes it clear
that an environmental report is required for certain kinds of
abandonments as specified in Sec. 380.3(c)(2).
Comments: INGAA notes that the proposed regulations require an
environmental report for the abandonment of facilities, except for
categorical exclusions. INGAA and Enron believe that all facilities
abandoned in-place should be excluded from the environmental reporting
requirement. This would be consistent with the proposal in the NOPR in
Sec. 157.206(b) that environmental review should be commensurate with
the amount of ground disturbance. The same principle should apply to
facilities abandoned in-place. In the alternative, INGAA, Enron, and
Questar suggests that any necessary clearances be provided for in-place
abandonments rather than a full environmental report.
Commission Response: We do not agree with INGAA that all facilities
abandoned in place should be excluded from the environmental reporting
requirement. For example, certain facilities may be contaminated with
polychlorinated biphenyls (PCBs). Even facilities that are abandoned in
place may have associated ground disturbance such as that required to
cut and cap the pipeline segment. In addition, the Commission wants to
determine if the landowner has any concerns with respect to having the
pipeline removed. Clearly, this action warrants some level of
environmental review. As has been our policy involving all projects
that are minor in scope, pipelines can determine what environmental
resource reports are not applicable to their project and identify them
in the application along with the reasons they are not applicable.
Thus, a detailed environmental report is not contemplated for a routine
abandonment in place of a section of pipeline, but key environmental
factors need to be addressed.
Section 157.20--General Conditions Applicable to Certificates
Section 157.20(b)
The NOPR proposed to revise Sec. 157.20(b) to allow for facilities
to be completed ``and made available for service'' instead of ``in
actual operation'' within the period of time specified in a particular
order.
Comments: INGAA and Enron support the concept, but have concerns
about the notification requirement. Both parties state that pipelines
may have no way of verifying, at the 30 day mark, whether the end-user/
shipper will meet the time period to flow gas. Enron requests removal
of the 30 day notification requirement. Facilities may be available to
other shippers on a secondary basis, although the firm end-user/shipper
has not taken service. INGAA and Williams propose that pipelines report
within 10 days after the prescribed time if the end-user/shipper has
not taken service through the new facilities. Enron suggests that a
pipeline report within 30 days instead of 10 days after the date
specified in order if the shipper has not taken service through new
facilities.
Williams recommends that the phrase ``shall be actually undertaken
and regularly performed'' be modified to read ``shall be available for
regular performance.'' Williams contends that this is consistent with
the proposed change in Sec. 157.206(c), since the pipeline cannot
control when the customer may be ready to start service.
Process Gas Consumers requests that the Commission clarify that it
did not intend to continue applying a one-year completion period
(``period of time to be specified''), since it is changing the
regulation to allow for unintended delays in commencing service. They
also want the Commission to clarify that it will continue to be
flexible in granting waivers and/or extensions of time to complete
facilities.
Commission Response: We agree that pipeline applicants may not be
able to verify 30 days in advance that a shipper is unable to meet the
timetable to commence service. It seems reasonable to allow a pipeline
to report within 10 days after the prescribed time if the end- user/
shipper has not taken service through the facilities. In addition,
Williams' proposal seems reasonable and consistent with the change
proposed in the NOPR. However, Process Gas Consumers is incorrect in
assuming that the Commission intends to discontinue determining a time
frame for the facilities to be constructed. To the contrary, we intend
to continue applying a specific time period for the completion of
construction projects. While that time period is typically one year,
the Commission has permitted other periods of time for completion of a
project and will continue to exercise its discretion in acting on
waivers and/or extensions of time to complete facilities.
Section 157.20(c) and (d)
We will revise Sec. 157.20(c) and (d) to remove the requirement
that quarterly reports be filed. Section 157.20(c)(2) requires
applicants to file quarterly progress reports on authorized
construction. We will remove this section because it duplicates
information the Commission's environmental staff already collects.
Likewise, we will remove Sec. 157.20(d)(1), which requires applicants
to file quarterly progress reports on the status of facility
acquisitions. However, pipelines are still required to notify the
Commission of the date of acquisition of facilities and the beginning
of authorized operations.
Subpart F--Interstate Pipeline Blanket Certificates and Authorization
Under Section 7 of the Natural Gas Act for Certain Transactions and
Abandonment
Section 157.202--Definitions
Section 157.202(b)(2)(i)--Eligible Facilities
The NOPR proposed to expand the definition of ``eligible facility''
contained in Sec. 157.202(b)(2)(i) to include mainline and lateral
[[Page 26580]]
replacement facilities that do not qualify under Sec. 2.55(b) because
they will have an impact on mainline capacity.
Comments: INGAA contends that any replacement project which would
not qualify under the proposed Sec. 2.55(b) regulations would or should
qualify as an eligible facility under Sec. 157.208(a), if it meets the
spending limits and environmental constraints. Similarly, National
Fuel, Questar and Williams are concerned that the change would not
cover a mainline replacement not qualifying under Sec. 2.55(b) because
of the requirement that replacements must be within same ROW. They
argue that replacements not in the same ROW should be covered under the
blanket certificate instead of requiring a separate Sec. 7(c)
application. National Fuel suggests the following revision to proposed
Sec. 157.202(b)(2)(i):
Further, eligible facility includes mainline and lateral
replacements that do not qualify under Sec. 2.55(b) of this chapter
because they will have an impact on the capacity of the mainline
facilities, or because they will not satisfy the location or work
space requirements of Sec. 2.55(b).
Commission Response: We intend to allow replacement facilities that
do not qualify under Sec. 2.55(b) because of land requirements to be
eligible facilities that can be constructed under Sec. 157.208 of the
blanket certificate. Further, to the extent that pipelines require more
ROW than is provided for in appendix A to part 2 for replacement
projects, including those not in the original footprint, such as river
crossings, etc., those replacements would qualify as eligible
facilities under our proposal. We reiterate that any such replacements
are subject to the environmental requirements of this section and will
be subject to whatever landowner notification procedures that may be
adopted in Docket No. RM98-17-000.
Replacements for Sound Engineering Purposes and Incremental Capacity
Comments: The American Gas Association (AGA) states that the
proposed regulations do not clearly reflect the Commission's intentions
that replacements must be done for sound engineering purposes and not
to create additional mainline capacity. AGA contends that the proposals
will allow construction of facilities that can substantially increase
capacity and result in bypass. AGA proposes that Sec. 157.202(b)(2)(i)
be amended to provide that replacements are done for sound engineering
reasons and not to create additional mainline capacity. Similarly, El
Paso and Michigan Gas Storage request the Commission clarify the
regulation so that mainline and lateral replacements are done only for
``sound engineering reasons and not for the purpose of creating
additional mainline capacity.'' They contend that this clarification in
regulatory text will ensure that the limitation is clearly communicated
to certificate holders, eliminating potential confusion and compliance
issues.
El Paso contends that the Commission should remove the words
``because they will have an impact on the capacity of the mainline
facilities'' from the definition replacements as eligible facilities.
El Paso argues the proposed language defining replacement facilities is
likely to create confusion because it refers to ``impact on the
capacity,'' whereas Sec. 2.55(b) requires replacements to have a
``substantially equivalent designed delivery capacity.''
NGSA, on the other hand, opposes expanding eligible facilities to
include any mainline and lateral replacements done automatically. NGSA
contends that such replacements should only be allowed on a prior
notice basis. This would allow parties to protest unnecessary
replacements, which they believe are not being done for ``sound
engineering reasons,'' but solely to increase capacity. NGSA proposes
that any facility replacement resulting in an increase of capacity be
subject to a prior notice.
Similarly, Sempra Energy opposes inclusion of any mainline
facilities within the blanket certificate. Sempra Energy is concerned
with additional mainline capacity being constructed under the guise of
``replacements.'' It believes that new or additional markets should be
served through permanent capacity release, by another market entrant,
or by LDCs or other non-FERC regulated services. Allowing construction
of additional mainline capacity under the blanket provides pipelines a
competitive advantage without Commission, state, consumer, and
competitive reviews.
Indicated Shippers suggests that prior notice be required for
construction of all mainline facilities that could affect capacity,
regardless of cost. Indicated Shippers believes such a limit would help
protect against pipelines circumventing cost caps by segmenting
essentially integrated projects in order to keep each component below
the automatic authorization cost cap.
Commission Response: As we stated in the NOPR and reiterate here,
any replacement facilities must be done for sound engineering reasons.
Our purpose is to allow replacements under the blanket certificate
where the replaced facility is marginally larger than the existing
pipeline. We recognize that this may result in an incidental increase
in mainline capacity. To the extent that additional capacity is created
by the project, such capacity must be incidental and not intended to
increase the point to point transportation capacity of the
pipeline.17 As such, we will revise the definition of
eligible facility in Sec. 157.202(b)(2)(1) to include replacement
facilities that result in an increase in the capacity of mainline
facilities. The regulation will also specifically state that
replacements must be done for sound engineering purposes and not for
the primary purpose of creating additional mainline capacity.
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\17\ However, if usable capacity is created, it must be posted
on the pipeline's EBB along with any other unused capacity.
---------------------------------------------------------------------------
NGSA and Sempra Energy oppose inclusion of replacements under the
blanket certificate because they believe that pipelines will use the
new regulations to increase mainline capacity at customer expense. We
disagree. Revising the definition of eligible facility specifically
puts pipelines on notice that any replacement must be done for sound
engineering reasons and not for the purpose of creating additional
mainline capacity. Parties believing that replacements are done for
other than those reasons should inform the Commission and may want to
consider filing a complaint. In addition, they can challenge the cost
and intent of the replacement in the relevant rate proceeding. Finally,
we find that parties have not presented any compelling reason why the
Commission should specifically exclude all replacements that result in
an incidental, incremental increase in capacity from being subject to
the automatic authorization requirement.
Replacement Compression Facilities
Comments: Great Lakes proposes that the Commission include
compressor replacements as eligible facilities, when such replacements
cannot be constructed under Sec. 2.55(b) because they will have an
impact on mainline capacity. Great Lakes requests that the Commission
clarify that replacement compression facilities which result in
incidental changes in capacity, in addition to increases in replacement
pipe size, are included in the proposed definition of eligible
facilities. Great Lakes claims that certain compressor and engine
models are no longer manufactured and most newer compressors have a
greater horsepower rating and yield greater capacity. According to
Great Lakes, a pipeline's option often is reduced to either
[[Page 26581]]
donating a unit so it can replace obsolete or major damaged units
immediately, or wait for separate section 7(c) approval to install
replacement compression facilities which yield an unintended, but
measurable, increase in capacity.
Great Lakes requests that the Commission recognize a pipeline's
need for flexibility in terms of sizing replacement compression
facilities under Sec. 2.55(b). Great Lakes wants the Commission to
clarify that pipelines are allowed to install under Sec. 2.55(b)
replacement compressor units or components which are the nearest,
practical, commercially available match to the removed unit or
component.
Commission Response: We agree that replacement compressors, as well
as replacement mainlines and laterals that have an incidental impact on
mainline capacity should be covered by the proposed change to the
definition of eligible facilities because they do not qualify under
Sec. 2.55(b). The rationale for including replacement compressors is
the same as that for replacement lines. To the extent that replacement
pipeline or compression is marginally different than the original
facilities and may result in an increase in capacity, the replacement
must be done for sound engineering reasons and not for the primary
purpose of creating additional mainline capacity.
However, we emphasize that replacement pipeline and compression
must be the closest available size and horsepower rating to the
facilities being replaced. While these replacement projects are subject
to the spending limits in Sec. 157.208, pipelines must not segment any
such projects in order to circumvent the automatic or prior notice
spending limits under the blanket certificate. We note that parties who
either know or believe that a pipeline segmented replacement facilities
to avoid cost caps can challenge recovery of those costs in the
relevant rate proceeding and attempt to show a pattern by the pipeline
of violating the Commission's regulations.18
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\18\ Our authority to remedy cases of segmenting includes
revoking the pipeline's blanket authority.
---------------------------------------------------------------------------
Under Sec. 2.55(b) replacements must have a ``substantially
equivalent design delivery capacity.'' Therefore, if the installation
of the nearest, practical, commercially available compressor unit would
result in an increase in capacity, the replacement would not qualify
under Sec. 2.55(b) and may be eligible to be installed under the
pipeline's blanket certificate.
Storage Laterals and Miscellaneous Rearrangements
Comments: The KN Pipelines request that the Commission clarify that
miscellaneous rearrangement of, and appropriate changes in diameter of
storage laterals within the field meet the definition of ``eligible
facility.'' \19\ KN Pipelines contends that the practical process of
rearranging a mainline pipe or storage pipe is the same, in both cases
the pipeline would likely have to acquire a new easement. KN Pipelines
states that a reasonable use of the blanket certificate for the
relatively small laterals typically associated with storage fields will
help alleviate an unnecessary burden on the Commission. Similarly,
Questar seeks clarification that injection and withdrawal laterals
connecting storage filed wells with central compression or transmission
lines are eligible as small diameter laterals under Sec. 157.208(a).
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\19\ KN Pipelines consist of Natural Gas Pipeline Company of
America, KN Interstate Gas Transmission Company, and KN Wattenberg
Transmission Limited Liability Corporation.
---------------------------------------------------------------------------
Michigan Gas also states that the reference in this subsection
should be to facilities necessary to provide service within existing
certificated levels, rather than certificated volumes. This would
recognize that replacement storage field facilities may not be directly
related to the existing certificated storage ``volumes.''
Commission Response: We agree with KN Pipelines that storage and
other lateral lines as well as mainlines can be rearranged under
Sec. 157.208. Section 157.202(b)(6) contemplates miscellaneous
rearrangement of facilities that does not result in any change in
service, including changes in existing field operations or relocation
of existing sales or transportation facilities. As to KN Pipelines
clarification, as long as any change in the diameter of storage
laterals does not result in any change in service such as increasing
capacity, deliverability or the injection and withdrawal rate, and
otherwise meets the definition for miscellaneous rearrangement in
Sec. 157.202(b)(6), we agree with KN Pipeline's request that such a
change can be done under Sec. 157.208.
Additionally, injection/withdrawal laterals connecting storage
field wells with central compression or transmission lines are eligible
as small diameter laterals under Sec. 157.208(a). These type facilities
are consistent with the intent of the regulations, as long as they do
not result in any change in existing service or operation, or increase
the capacity or deliverability of the storage field. We see no reason
to treat storage laterals any different than any other lateral covered
under the blanket authority.
We also agree with Michigan Gas and will change the reference from
``within existing certificated volumes'' to ``within existing
certificated levels.''
Automatic Abandonment
Comments: El Paso states that the NOPR does not address the issue
of whether pipelines must obtain abandonment authorization for mainline
or lateral facilities which are being replaced under the blanket
certificate. The Commission should clarify that either no section 7(b)
authority is needed for replacements constructed under this section or
provide for blanket section 7(b) authority.
Commission Response: We note that under new Sec. 157.216(a)(2),
pipelines will have the authority to automatically abandon eligible
facilities, subject to the pipeline obtaining written consent from
existing shippers. However, there is no need to get shipper approval
when the abandonment is for a facility that will be replaced and the
pipeline will continue service.
Interconnecting Points
Comments: INGAA wants the Commission to expand the definition of
interconnecting points to include the pipeline that connects the tap,
meter, M&R and minor related piping identified in the NOPR. INGAA and
Koch Gateway believe that excluding interconnecting pipeline segments
from the blanket certificate unnecessarily restricts open access
service and limits the ability of pipelines to quickly react to meet
market demands for additional grid flexibility. According to INGAA and
Koch Gateway, the spending limits under the blanket certificate
effectively limits the length of any interconnecting pipeline. INGAA,
KN Pipelines and Questar request that the Commission, as a minimum,
include compression as part of the facilities involved in an
interconnect. They state that compression is common, since the
prevailing pressures of interconnecting pipelines usually differ.
Questar argues that allowing only approximately 200 feet of ``minor
related piping'' is too restrictive. Questar contends that there is a
clear need to allow piping that may be miles in length, even as much as
20 miles, to interconnect with other interstate pipelines. Regardless
of length, Questar states that the function is the same--to connect the
systems of two transporters operating under Part 284. Citing KN
Interstate Gas Transmission Company
[[Page 26582]]
(KN Interstate),\20\ Questar contends that many pipelines interpreted
the term ``interconnecting points'' to include any facility necessary
to connect the facilities of two open access pipelines, as long as the
cost fell under the dollar ceiling in Sec. 157.208. Questar proposes
that the definition be expanded to include any facilities, including
piping, compression, metering, etc., necessary to interconnect two open
access transporters. Williams suggests that the Commission add ``and
associated piping'' after ``interconnecting points'' to recognize in
the regulations that some additional piping may be necessary.
---------------------------------------------------------------------------
\20\ 83 FERC para. 61,305 (1998).
---------------------------------------------------------------------------
Commission Response: We do not believe it is appropriate to expand
the definition of eligible facilities to include interconnecting
pipeline. In KN Interstate, we found that a 2-mile pipeline was not an
interconnecting point. The order clarified that an interconnecting
point under Sec. 157.208(a) specifically refers to taps, meters, M&R
facilities and minor piping. This is consistent with the intent of the
blanket certificate, which is to allow pipelines to construct
facilities so routine that they have relatively little impact on
ratepayers or pipeline operations.
Among others, non-eligible facilities include main lines,
extensions of a main line, and any facility, including compression and
looping, which alters the capacity of a main line.21 Thus,
while a proposed pipeline facility may be associated with an
interconnecting point between open-access transporters, the facility
nevertheless is not an eligible facility because it is a mainline
connecting two interstate pipelines, not a supply or delivery lateral.
The same rationale applies to compression located on any such pipeline.
To specifically clarify this point, we will add a new definition as
Sec. 157.202(b)(12), Interconnecting point(s), to specifically limit
the eligible facilities to the tap, metering, M&R facilities and minor
related piping.
---------------------------------------------------------------------------
\21\ We are adopting a limited exception to our definition of
eligible facilities to allow replacement mainline, lateral, and
compression facilities that may result in an incidental increase in
mainline capacity.
---------------------------------------------------------------------------
Storage Injection, Withdrawal, and Replacement Wells
Comments: Enron, INGAA and Michigan Gas contend that adding the
word ``storage'' in the definition of eligible facility, ``needed by
the certificate holder to receive gas into its system for further
transport or storage'' permits storage injection/withdrawal and
replacement wells and associated piping to be constructed under the
blanket certificate. They suggest that the Commission explicitly
confirm this understanding in its final rule.
Commission Response: The proposal to include such wells under the
blanket certificate is part of the ``landowner notification''
proceeding in Docket No. RM98-17-000. As noted there, the Commission is
considering expanding the definition of eligible facilities to include
replacement or observation wells. However, we expressed concern about
whether and how pipelines should be required to acquire consent from
the landowner prior to beginning construction.
Maximum Allowable Operating Pressure
Comments: El Paso and INGAA suggest that the Commission allow
pipelines to use the prior notice procedures under Sec. 157.205(b) to
update or increase the Maximum Allowable Operating Pressure (MAOP) of a
lateral when the lateral pressure is less than that of the upstream
mainline. El Paso states that increasing the MAOP of a lateral
typically is performed for the purpose of providing additional pressure
to a distribution customer whose load at a particular delivery point
has increased over the years to such an extent that, on cold days, the
existing MAOP of the lateral is insufficient to ensure delivery of all
of the shipper's volumes. El Paso and INGAA contend that allowing this
will eliminate an arbitrary distinction between laterals constructed
under section 7(c) and laterals constructed as eligible facilities
under the blanket certificate. INGAA notes that any additional capacity
created would be posted on the pipeline's EBB. Williams, however,
suggests that Sec. 157.208(f)(2) be rewritten to allow this change
automatically, instead of under the prior notice procedure.
Commission Response: Currently, pipelines must file a certificate
amendment in order to increase the MAOP of laterals constructed under
case-specific section 7(c) authority (see Sec. 157.20(g), which was
redesignated Sec. 157.20(f) in the NOPR). However, for laterals
constructed as eligible facilities under Sec. 157.208 of the blanket
certificate, pipelines need only file a prior notice to increase the
MAOP (see Sec. 157.208(f)(2)). We agree that there need not be an
artificial distinction between updating the MAOP of laterals
constructed under individual section 7(c) authority and under
Sec. 157.208 blanket certificate authority. Therefore, we intend to
modify Sec. 157.208(f)(2) to permit pipelines to follow the prior
notice procedures in order to increase the MAOP of laterals constructed
under section 7(c).
We disagree with Williams suggestion that any increase in lateral
MAOP be allowed automatically instead of under the prior notice
procedures. When this section was promulgated in Order No. 234, we
required prior notice of any intent to change the MAOP because of the
need for safety and reliability of service. These reasons have not
changed. Increasing the MAOP of a lateral could have a detrimental
effect on interconnections along the facility. For example, receipt
point pressures may no longer be great enough to allow gas to enter the
lateral. At the other end of the lateral, increased delivery pressures
may cause problems for delivery customers' existing M&R facilities. For
these reasons, we will not allow a prospective change in the MAOP to be
done automatically.
Section 157.202(b)(2)(ii)(B)--Extension of a Main Line
Several parties seek changes to Sec. 157.202(b)(ii)(B), which
excludes extensions of mainlines from eligible facility status.
Comments: El Paso, Enron, and INGAA all propose that the Commission
modify this section to permit pipelines to construct, as eligible
facilities, mainline extensions which are designed to receive gas
supplies from another pipeline. These parties submit that mainline
extensions, as well as the interconnecting pipe in KN Interstate are no
different than any supply lateral constructed as eligible facilities.
El Paso Energy recommends that the Commission revise this section
so that mainline extensions which enable pipelines to receive gas
supplies from a gatherer, intrastate pipeline, or interstate pipeline
would become eligible facilities.
Commission Response: This is essentially the same argument earlier
raised and rejected to expand the definition of interconnecting points
to include any connecting pipeline. For the same reasons, we will not
expand the definition of eligible facilities to include mainline
facilities, other than the limited exception for replacements as
discussed earlier. The Commission excludes mainlines and their
extensions from the definition of eligible facilities because they
alter mainline capacity and can have a substantial impact on the rates
and services a pipeline provides. These facilities are not considered
the type of routine construction the regulations contemplated for
automatic
[[Page 26583]]
authorization, without any review by the Commission.
Section 157.202(b)(ii)(D)--Minor Storage Operations
The NOPR revised Sec. 157.202(b)(2)(ii)(D) to extend the blanket
authority for tests or other minor storage operations which do not
increase certificated, including grandfathered, storage capacity,
deliverability or storage boundary.
Comments: Market Hub Partners, L.P. (Market Hub Partners) states
that the Commission must ensure that pipelines that own both storage
facilities and pipeline facilities are not able to leverage the
automatic authorizations to give an unfair advantage to the pipelines'
storage facilities.
National Fuel supports the proposal to limit the exclusion of
storage facilities from the definition of eligible facilities in
Sec. 157.202(b)(2)(ii)(D) because the current definition would exclude
even an uprising or minor rerouting of a small diameter storage
pipeline.
Commission Response: Initially, we modified Sec. 157.202(b)(ii)(D)
to allow minor changes in storage operations that do not alter the
certificated capacity, deliverability, or the storage boundary. We did
not intend this change to allow, for example, pipelines to drill
additional injection/withdrawal wells automatically for the purpose of
increasing field deliverability, even though such change would not
affect the certificated capacity of the storage field.
We are concerned that ``and'' in the regulation instead of ``or''
will create situations for pipelines to test, develop, or utilize an
underground storage field in any manner, as eligible facilities, so
long as the action does not increase the certificated storage capacity
or boundary of a field. Under existing Sec. 157.215, pipelines can
automatically construct and operate pipeline and compression facilities
and drill wells for the testing and development of reservoirs, subject
to specified spending limits. In modifying this regulation, we intended
to allow minor changes to field operations and facilities, such as
rerouting or changing storage field lines. We did not intend for
pipelines to be able to use this section to drill additional wells as
eligible facilities, even if such wells would not change the capacity
of a field. As noted above, we are currently exploring the option of
allowing pipelines to drill replacement or observation wells under
Sec. 158.208 as part of the landowner notification proceeding in Docket
No. RM98-17-000. Since we also clarified above that minor storage field
changes, including rerouting or changing storage lines, can currently
be done under the blanket certificate, we will change our proposal here
so that wells must still be drilled under Sec. 157.215. Accordingly, we
will revise Sec. 157.202(b)(2)(ii)(D) to state:
A facility required to test, develop or utilize an underground
storage field or that alters the certificated capacity,
deliverability, or storage boundary, or a facility required to store
gas above ground in either a gaseous or liquefied state, or a
facility used to receive gas from plants manufacturing synthetic gas
or from plants gasifying liquefied natural gas.
Section 157.202(b)(5)--Small Diameter Laterals
The NOPR proposed to revise Sec. 157.202(b)(5) to remove the phrase
``small diameter lateral'' and add, in its place, the words ``small
diameter supply or delivery lateral'' to further clarify what
facilities are not considered main line facilities.
Comments: Williams contends that the Commission should adopt a
flexible but more definitive description such as replacing ``small''
with ``laterals which have a diameter which is equal to or less than
four-fifths the diameter of the mainline to which it connects or from
which it extends.''
Commission Response: We decline to adopt Williams' suggestion to
modify the definition of ``small diameter lateral.'' The proposed
regulation makes it clear that lateral lines are eligible facilities
that can be constructed under Sec. 157.208.
Section 157.202(b)(6)--Miscellaneous Rearrangement
While the NOPR proposed no changes to Sec. 157.202(b)(6),
Miscellaneous rearrangement of any facility, we received comments
suggesting various changes.
Comments: INGAA seeks clarification that replacements done to
ensure safety, e.g., when residential, commercial or industrial
development has encroached on the pipeline, to comply with
environmental regulations, maintain operational integrity or because of
erosion, changes in river or stream courses or other forces beyond the
pipeline's control, would qualify as eligible facilities. Since these
situations require prompt action, INGAA believes that the list of
examples should be expanded to include these situations. National Fuel
shares the same concern.El Paso wants the Commission to expand the
definition to recognize the range of factors beyond a pipeline's
control which might require a rearrangement of facilities. El Paso
believes that the definition should include any forces, including
natural causes, which are outside a pipeline's control, as well as
rearrangements conducted at the request of a landowner. El Paso
contends that this change would increase flexibility and clear-up the
confusion that exists regarding the applicability of the provision.
El Paso Energy recommends that the definition be revised as
follows:
Miscellaneous rearrangement of any facility means any
rearrangement of a facility that does not result in any change of
service rendered by means of the facilities involved, e.g., changes
in existing field operations or relocation of existing facilities
when (1) requested by the landowner, (2) when required by highway
construction, dam construction, erosion, or the expansion or change
of course of rivers, streams or creeks, or (3) to respond to other
forces beyond the certificate holder's control when necessary to
ensure safety, comply with environmental regulations or maintain the
operational integrity of the certificate holder's facilities.
Great Lakes argues that off ROW replacement facilities should be
allowed under this section. According to Great Lakes, topographical
changes due to floods, landslides and other naturally occurring events
should qualify under this section. The Commission should clarify that
construction resulting from acts of nature are authorized.
Commission Response: We intend that ``other similar reasons'' for
miscellaneous rearrangements includes such reasons as maintaining
operational integrity or problems due to natural causes such as changes
in river or stream courses or other natural forces beyond the
pipeline's control. We are excluding encroachment of residential,
commercial or industrial development in the definition of miscellaneous
rearrangement of facilities because it involves landowner issues. These
issues are better addressed in the proceeding in Docket No. RM98-17-
000, which discusses many landowner issues in detail. Rearrangement in
these instances still require appropriate NEPA review. We will revise
Sec. 157.202(b)(6) accordingly.
Section 157.202(b)(10)--Sales Taps/Delivery Points
The NOPR modified Sec. 157.202(b)(10) to remove the words ``Sales
tap(s)'' and add in their place, the words ``Delivery points.'' The
NOPR also proposed to amend the related Sec. 157.202(b)(2)(ii)(E) to
remove the words ``Sales Tap'' and add, in their place, the words
``Delivery points under Sec. 157.211.'' To implement the change to
these sections, the NOPR proposed removing existing Sec. 157.212--
Changes in delivery points--and revising Sec. 157.211--Sales taps--to
become new Sec. 157.211--Delivery points.
[[Page 26584]]
Comments: INGAA contends that the definition in Sec. 157.202(b)(10)
limits pipelines because it does not include the pipeline associated
with the delivery point. INGAA is concerned that the definition limits
construction only to facilities at the actual point of delivery, and
not to a lateral facility extending to or from those points, which
drastically reduces the usefulness of this option. It argues that since
delivery points are not installed without any associated piping of some
length, the limited definition will reduce a pipeline's flexibility to
add new customers, such as electric generation, to the grid, because
any such addition will require a section 7 filing.
Duke Energy and Great Lakes propose that the Commission clarify the
regulation to avoid confusion so that heaters, minor gas conditioning
facilities, treatment, odorization, and similar equipment that may be
required on delivery facility installations is covered by the phrase
``appurtenant facilities''.
Great Lakes states that this section should also permit new
delivery points for existing customers, not just to attach new
customers.
National Fuel states that the definition in Sec. 157.202(b)(10)
should be changed to replace ``any customer'' with ``any party.'' In
many cases, the owner of the facility to be interconnected with the
pipeline is not a customer of the pipeline, but another entity
transporting gas for the customer of the pipeline.
Commission Response: Commenters are concerned that the new
definition of delivery point either changes the way such facilities can
be constructed or changes or limits the type of facilities, i.e.,
related delivery laterals, that can be constructed. Currently,
pipelines must file a prior notice to construct a sales tap under
Sec. 157.211 or a delivery point under Sec. 157.212. Since the related
delivery lateral is considered an eligible facility, pipelines
currently can construct this connecting line automatically under
Sec. 157.208, subject to the spending limits in that section. These
laterals are eligible facilities because they are specifically excluded
from the definition of main line in Sec. 157.202(b)(5).
The Final Rule creates a new Sec. 157.211 to encompass the
construction of all delivery points, rather than have two confusing
sections to choose between. New Sec. 157.211 allows pipelines to
construct virtually any delivery point for both new and existing
customers, with the exception of bypass facilities, on an automatic
basis, subject to the spending limits in Sec. 157.208. However, the
authority for pipelines to construct related delivery laterals remains
unchanged, i.e., they are eligible facilities. Prospectively, a
pipeline will be able to construct both the delivery point and the
related upstream delivery lateral on an automatic basis, subject to the
limitations in Secs. 157.208 and 157.211. Thus, for projects that meet
the spending limits and do not involve bypass, pipelines are relieved
of the burden of making an upfront filing prior to constructing the
delivery facilities.
As to Duke Energy and Great Lakes proposal to clarify the
definition of ``appurtenant facilities'' in Sec. 157.202(b)(10) to
include minor gas conditioning and similar facilities, we agree and
will modify the section. We also agree that the reference to ``any
customer'' should be modified to refer to ``any party'' to recognize
the reality of transportation today.
Section 157.203--Blanket Certification.
The NOPR proposed minor editorial changes.
Comments: The Council questions whether the issuance of a blanket
certificate under this subpart constitutes an ``undertaking'' as
defined under the NHPA.
Commission Response: The creation of the blanket certificate
program was covered by the environmental assessment issued in 1981,
which concluded that projects which meet the standard environmental
conditions would not have a significant effect on the human
environment. The blanket certificate only authorizes projects which
adhere to these procedures which, among other things, protect historic
properties. The Commission determined that projects which were required
to adhere to these procedures would not have an effect on historic
properties eligible for the National Register of Historic Places.
Therefore, while these individual projects may be undertakings, they do
not require the Council's comment.
Section 157.205--Notice Procedures
Section 157.205(d)--Publication of Notice of Request
The NOPR proposed to require that the Commission would issue a
notice within ten days of the filing of an application in redesignated
Sec. 157.205(d). Process Gas Consumers requests that, among other
things, the Commission require pipelines provide more specific notice
directly to its customers, as specified in the discussion of Sec. 157.9
above. As stated in our response in Sec. 157.9, we believe the existing
notice requirements provide sufficient opportunity for all parties to
receive adequate notice of filings with the Commission.
Section 157.205(e)--Protests
The NOPR proposed to amend redesignated Sec. 157.205(e)(2) to add
that parties protesting an application in a prior notice filing
specifically set out the reasons and rationale for their protest.
Comments: The American Public Gas Association states that the
request is reasonable if the potential protestor has all the filed
material well before the protest deadline. It argues that it is
critical that protestors have the relevant data and the time to analyze
the data if they are to file substantive protests.
Commission Response: The NOPR proposed a number of changes, most of
which are designed to speed up the processing time for certificate
filings by requiring pipelines to file substantially complete
applications or face the prospect of having such filings rejected. We
note that prior notice applications are usually non-controversial and
involve routine activities. It is incumbent upon the pipeline to
include all relevant material with the application to ensure that the
application will not be rejected. The extended time frame for pipelines
to supply voluminous or hard to reproduce materials generally applies
to significant transmission facilities that require a separate section
7(c) application. Thus, prior notice filings, by their nature, should
be substantially complete when filed, which should allow ample time for
interested parties to timely intervene.
In the event that a potential protestor believes that an
application does not contain sufficient information for it to justify a
protest, it should explain specifically what information is missing and
how that affects its ability to protest. If such a situation were to
occur, the proposal in the NOPR is not intended to deprive any party of
the opportunity to point out the defects in an application.
Section 157.205(g)--Withdrawal or dismissal of protest
The NOPR proposed in redesignated Sec. 157.205(g) to allow the
Director of OPR to dismiss any protest to a prior notice filing which
does not raise a substantive issue and fails to provide any specific
reason or rationale for the objection.
Comments: AGA wants the Commission to clarify that protests
alleging that the pipeline's activity will result in a bypass of the
LDC will not be dismissed for lack of substance. AGA
[[Page 26585]]
proposes that Sec. 157.205(g) and the related Sec. 375.307(a)(10) be
revised to state that any protest that alleges bypass will not be
dismissed. AGA suggests that the following language be added at the end
of each regulation:
However, the Director of the Office of Pipeline Regulation may
not dismiss a protest that alleges bypass. Such a protest will
subject the request of the certificate holder to the full procedural
requirements of the Natural Gas Act under section 7 authorization
for the particular activity.
American Public Gas Association expresses two concerns: (1) That
the term ``substantive'' is too vague and gives the Director of OPR
excessive discretion; and (2) that the relationship of a dismissal of a
protest and the effect of a protest is unclear. APGA states that it is
not clear that dismissal of a protest prevents conversion of the
proceeding to NGA section 7 status. APGA suggests that the Commission
forgo these changes.
Duke Energy states that the regulation should be clarified so that
a notice of dismissal of protests is issued within the 30 day
resolution period. Duke Energy contends that this will eliminate the
need for any further order and helps ensure that the prior notice
process cannot be used by protestors seeking other unrelated
consideration from the pipeline.
Indicated Shippers contends that the proposal inappropriately
delegates one of the Commission's most fundamental responsibilities
under the NGA to the Director of OPR. It contends that all interested
parties must be given a meaningful opportunity to present their
positions to the Commission, including the ability to seek a hearing.
The Director of OPR must not be placed in position of establishing
policy and precedent. Indicated Shippers and NGSA both argue that
dismissal of a protest would effectively permit a prior notice to
become effective long before the Commission could act on a protesting
party's appeal or motion for stay of the dismissal. According to
Indicated Shippers, if the Director of OPR keeps this authority, the
Commission needs to amend Sec. 375.307(a) because it only authorizes
action on uncontested filings. If a protest is filed, a prior notice is
contested. Market Hub Partners states that protestors should not have
their protest rejected because of deficiencies in pipeline filings or
because of delays in noticing filings.
El Paso contends that the standard for determining which protests
will be dismissed is vague and expresses concern with how it will be
applied. El Paso requests that the Commission clarify that protests
which merely raise conclusory allegations without specific factual
support may be dismissed by the Director. For example, protests which
allege unfair competition or undue discrimination without support
should be dismissed. El Paso states that this clarification is
necessary to assure that protestors cannot delay projects by merely
raising arguments which lack factual support or legal merit.
INGAA and El Paso recommend that Sec. 157.205(g) be revised as
follows:
The Director of OPR may make a determination whether protests
raise a substantive issue or set forth specific reasons and
rationale for the objection, and dismiss the protest for failure to
either raise a substantive issue or set forth specific reasons and
rationale for the objection.
INGAA states that the authority to dismiss protests for either
reason will give the Director broader discretion to dismiss protests
while still applying the standards set forth.
Commission Response: The intent of the proposed regulation is to
allow the Director of OPR to dismiss any unsubstantiated protest to a
prior notice application. Protests that raise legitimate issues will
not be dismissed. However, ``no issue'' protests, those that offer no
support for the protest, are subject to dismissal. For example, AGA
requests that any protest alleging bypass not be dismissed. Simply
stating an objection is not enough reason to impede the progress of a
prior notice filing. However, if, for example, an allegation of bypass
is accompanied by specific reasons and rationale for the objection,
then such a protest will not be dismissed. A protestor does not
necessarily have to prove that its allegation is true, but it does have
to substantiate its objection. This will not deprive any party of an
opportunity to present its position to the Commission for
consideration. We reiterate, the dismissal pertains only to protests
that do not raise a substantive issue and fail to provide any specific
detailed reason or rationale for the objection.
As stated, APGA contends that it is not clear how the dismissal of
a protest will effect the conversion of the proceeding to a NGA section
7 proceeding. Also, Duke requests that the Commission clarify that the
protest will be dismissed during the 30 day resolution period. We
clarify that the Director of OPR will dismiss an unsubstantiated
protest within 10 days of its filing. However, we will continue to
require that the 30 day reconciliation period run for the entire 30
days to allow the protesting party time to pursue other alternatives.
Section 157.206--Standard Conditions
Section 157.206(b)--Environmental Compliance
The NOPR proposed to create a lead-in to the environmental
conditions of subpart F in redesignated Sec. 157.206(b) to indicate
that the conditions apply only to activities under the blanket
certificate that involve ground disturbance or changes to operational
air and noise emissions.
Comments: Enron and Williams agree with the proposed clarification,
but request that it be codified in Sec. 157.206(b).
Sempra Energy states that it cannot imagine a situation in which
blanket activity will not ``involve ground disturbance or changes to
operational air and noise emissions.'' It contends that any ambiguity
will provide pipelines with incentive to characterize projects as non-
ground disturbing to eliminate the notice and protest process and
construct facilities. Sempra Energy proposes that the Commission
either: (1) eliminate the proposed revision; or (2) clarify that
standard environmental conditions continue to apply to all
construction, installation, removal, re-work, or repair of facilities.
Commission Response: We agree with Enron and Williams and will
modify Sec. 157.206(b) to reflect this clarification. As to Sempra
Energy's concern, we reiterate that these conditions apply to all
activities performed under the blanket certificate, regardless of cost.
Thus, they apply to facilities constructed under the automatic and
prior notice procedures. However, we will clarify that the standard
environmental conditions continue to apply to all construction,
installation, removal, re-work, or repair of facilities performed under
the blanket certificate.
Section 157.206(b)(5)
The NOPR proposed to revise redesignated Sec. 157.206(b)(5) to
bring it into line with current usage concerning limitations on
compressor station noise levels.
Comments: Duke Energy, El Paso Energy, INGAA, and Williams all want
the Commission to clarify whether any change to a single compressor
unit or adding a new unit requires the noise level of the entire
compressor station to be reduced to 55 dB(A). They are concerned about
the terms ``modified, upgraded, or uprated.'' These parties contend
that the language implies that almost any modifications to individual
compressor units will force other previously approved units in the same
station to meet the 55 dB(A) noise limits, even if no modifications to
these
[[Page 26586]]
units are performed. They believe such a result would be at odds with
current Commission policy, which requires pipelines to maintain
compressor stations at existing levels when any changes are made. These
parties request that the Commission clarify the 55 dB(A) noise level is
applicable only to the individual unit being added, modified, upgraded,
or uprated and not to the entire compressor station which was
previously installed.
Commission Response: Our intent was to have the noise limit apply
to the new or modified compressor units. We will modify
Sec. 157.206(b)(5) to reflect this intent.
Section 157.206(c)--Commencement
The NOPR proposed to revise redesignated Sec. 157.206(c) to allow
for facilities to be completed ``and made available for service''
instead of ``in actual operation'' within one year of
authorization.22
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\22\ See the related discussion of a similar change in
Sec. 157.20(b).
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Comments: El Paso Energy and INGAA agree with the proposal, but
request that the annual report required in Sec. 157.208(e)(2) be
modified to reflect the change here.
Commission Response: The Commission is concerned with the actual
completion date of projects constructed under the blanket certificate
for, among other things, environmental review purposes. However, we are
also concerned with the date service commences. Changing the reporting
requirements so that facilities will not be reported until they are
``available for service'' could result in delays in both reporting and
review. While facilities could be ``completed and made available for
service'' within the specified timetable, service may not commence at
that time if the end-user/shipper is not ready to flow gas. Since the
annual report in Sec. 157.208(e)(2) currently requires the actual date
that construction was completed, we will modify the report to also
require the date service commenced.
Section 157.208--Construction, Acquisition, Operation, and
Miscellaneous Rearrangement of Facilities.
Section 157.208(a) and (b)
Consistent with our proposed change to the definition of an
eligible facility in Sec. 157.202(b)(2)(i), the NOPR clarified that
Secs. 157.208(a) and (b) will now include certain replacement
facilities that do not qualify under revised Sec. 2.55(b).
Comments: INGAA requests clarification that rearrangements of
storage lines will also be included in this section as the practical
process is the same whether a pipeline is rearranging mainline pipe or
storage pipe.
Commission Response: It appears that INGAA wants a clarification of
the definition of miscellaneous rearrangement of any facility. The
definition does not specifically limit the rearrangement to mainline
versus lateral or storage lines. It limits the reasons for the
rearrangement. Storage lines, as well as mainlines can be rearranged as
eligible facilities under this section, so long as the rearrangement
qualifies under the definition in Sec. 157.202(b)(6).
Section 157.208(c)(9)
The NOPR proposed to amend redesignated Sec. 157.208(c)(9) to add
the specification that a copy of consultations for the Endangered
Species Act, the National Historic Preservation Act, and the Coastal
Zone Management Act be included in any prior notice filing made under
this section.
Comments: The Council asks the Commission to describe what
constitutes ``clearance'' and how can it be obtained by the certificate
holder given the Commission's nondelegable responsibility.
INGAA states that the preamble to the NOPR requires a copy of
consultations, while the regulation requires a copy of the clearance
received at the time a prior notice is filed. INGAA wants the
Commission to clarify whether the final clearance is required or
whether just the copy of consultations is required. If the final
clearances are required, INGAA contends that this does not reflect the
realities of dealing with the various permitting agencies involved.
While understanding the Commission's need to verify that clearances
have been obtained before the prior notice period runs, INGAA suggests
that pipelines file requests for clearances at the time of the prior
notice and supplement with actual clearances when received. Enron and
Great Lakes raise the same concern and request that actual clearances
be filed within 30 days. If clearances are not received by the close of
the protest period, the Commission could deem the prior notice
protested. INGAA proposes the following language:
A copy of the clearance received or the request for clearances
for Endangered Species Act, the National Historic Preservation Act
and the Coastal Zone Management Act shall be included in any prior
notice filing. If a request for clearance is filed, then a copy of
the final clearance must also be filed, when received. Failure to
file the final copy by the end of the protest period will deem the
prior notice filing protested.
Commission Response: As to the Council's request, we will change
the word ``clearances'' to ``agreements.'' We have already addressed
the issue of delegation when we said that projects which comply with
the standard conditions do not constitute undertakings which would
affect historic properties.
As to INGAA's request, we clarify that the reference to a copy of
consultations means a final agency agreements. Prior notice filings, by
definition, are for those projects on which the company could begin
construction within 45 days from the filing date. As a result there is
no justification for allowing the company to file a prior notice
without already having the agreements.
Section 157.208(e)
Section 157.208(e) details the annual reporting requirements for
facilities completed under this section. The NOPR proposed to revise
this section to require complete reports only for facilities
constructed under the automatic authority conferred by Sec. 157.208(a).
Comments: INGAA requests that the Commission clarify whether
pipelines are required to identify facilities constructed under prior
notice procedures and the cost levels of such facilities in their
annual report in Sec. 157.208(e).
Commission Response: Pipelines are still required to identify such
facilities and to provide the complete cost information required in
Sec. 157.208(e)(3). However, because the prior notice application
includes all the information regarding the facility, the only
identification necessary would be the docket number of the prior notice
that authorized construction. We note that this action reduces the
reporting burden on all pipelines.
Section 157.209--Temporary Compression Facilities
The NOPR proposed to create a new Sec. 157.209 to allow blanket
certificate holders to install temporary compression for the limited
purpose of maintenance or repair of existing permanent compressor
unit(s).
Comments: El Paso Energy and INGAA want the Commission to clarify
that pipelines can operate temporary compressors occasionally for
maintenance purposes to ensure that the compressors will perform up to
specifications when needed, including complying with the 55 dB(A) noise
level. INGAA argues that, in cases of
[[Page 26587]]
routine maintenance, pipelines should be able to install a temporary
engine while repairing a permanent engine, or install a spare engine in
place of the engine that is removed for repair. INGAA recommends that
these activities be permitted as maintenance under this section.
Commission Response: We will grant the clarification. It is
consistent with the intent of this section and will help ensure the
reliability of certificated entitlements in the event of compressor
problems.
Section 157.211--Sales Taps
The NOPR proposed to redefine this section as Delivery points and
provide for automatic and prior notice authorization to acquire,
construct, replace, modify, or construct any delivery point.
Construction of Delivery Points
Comments: Enron and INGAA state that the NOPR describes receipt
points as being constructed under Sec. 157.211, while the proposed
regulations indicate that receipt points are eligible facilities to be
constructed under Sec. 157.208.
Commission Response: The Commission agrees with Enron and INGAA
that the intent is for receipt points to be constructed automatically
as eligible facilities under Sec. 157.208, subject to the spending
limits. Section 157.211 would cover receipt points that prospectively
will function as delivery points as a result of unbundling. The ``and
vice versa'' in the preamble to the NOPR was inadvertent. We clarify
that delivery points will not actually be converted into receipt points
under Sec. 157.211.
Definition of End-User
In Sec. 157.211(a)(2), the NOPR required prior notice of the
construction of a delivery point where the gas is being ``delivered to,
or for the account of, an end-user that is currently being served by an
LDC.''
Comments: National Fuel requests that the Commission revise
Sec. 157.211(a)(2)(i) to read instead where the gas is being
``delivered directly to an end user'' to clarify that delivery into an
LDC facility that feeds an end user could be undertaken automatically
under Sec. 157.211(a)(1).
Commission Response: In a situation where a pipeline delivers gas
directly to an LDC, which then redelivers the gas to an end-user, the
LDC performs a transportation function and is not bypassed in such a
transaction. Accordingly, under that situation, automatic authorization
is appropriate.
Prior Notice Requirement for Bypass
Comments: AGA and Sempra Energy note that the regulations do not
specifically mention ``bypass'' and that a prior notice is only
required when a customer is ``currently being served'' by an LDC. AGA
believes that ``currently being served'' is sufficiently ambiguous that
pipelines could evade the prior notice requirements, even where an LDC
is being bypassed. AGA suggests that the Commission change
Sec. 157.211(a)(2)(i) to add: ``currently being served'' includes
circumstances where the customer is attached to the LDC even if it is
not currently taking gas. AGA also requests that the Commission modify
Sec. 157.205 to require that the pipeline notify both the LDC and the
state utility commission of any bypass activity. AGA also requests that
the Commission define bypass to include situations where the pipeline
proposes to serve a customer within the LDCs' service area, even if the
LDC previously has not served that customer.
On the other hand, Process Gas Consumers (PGC) argues that the
Commission should eliminate the use of prior notice for all delivery
points, including new delivery points for end users served by LDCs. PGC
states that the Commission's policy is well established and consistent
with principles of nondiscriminatory access. According to PGC, end
users and LDCs are equally entitled to new delivery points, including
ones that bypass traditional suppliers. If a pipeline violates a
Commission policy, PGC states that it is subject to a complaint under
NGA section 5. PGC further states that if the customer violates any
contract with an existing supplier, it faces a contract remedy. PGC
also argues that direct service to an end user should also be automatic
if the contract has expired or will expire by the time service from the
new delivery point commences.
PGC also wants the definition of delivery point in
Sec. 157.202(b)(10) expanded to include new and additional service to a
customer, whether or not at the same location. For example, an
industrial user installing a second plant should be entitled to treat
the new installation as new service and should be able to obtain a
delivery tap automatically. The end user should not be subject to
protests and delays because it continues to receive service for the
remainder of its operations from its existing LDC. New service, beyond
the existing LDC service should entitle the end user to obtain a
delivery tap under the automatic procedures.
Commission Response: The Commission has previously determined that
a bypass does not occur when a pipeline proposes direct service to a
new customer that is not currently being served by an LDC under an LDC
contract.23 The purpose of 157.211(a)(2)(i) is to provide
notice to an LDC of a potential bypass. This is consistent with our
current bypass policy, which we apply on a case by case basis, and see
no basis to change that policy. This policy requires that a nexus be
shown between the LDC's obligation to purchase service from the
pipeline and the pipeline's proposed service to the end-user. Our
policy is not to engage in speculation as to an LDC's market, nor
second guess end-users'' choices.
---------------------------------------------------------------------------
\23\ See K N Interstate Gas Transmission Company, 85 FERC para.
61,327 (1998), Texas Eastern Transmission Corporation, 71 FERC para.
61,020 (1995), and Mojave Pipeline Company, 69 FERC para. 61,921
(1994).
---------------------------------------------------------------------------
As stated, PGC argues that adding delivery points to serve end-
users should be allowed under the automatic authorization. We disagree.
We see no reason to modify our policy to provide an LDC currently
providing service to an existing customer notice of a potential bypass.
To the extent that a pipeline wishes to add a delivery point for a
customer where the affected contract with the LDC has expired, the
pipeline may add the delivery point under the automatic authorization.
However, the existing firm contract must expire prior to the
construction of new delivery facilities in order not to constitute a
bypass.
Further, we note that the regulation requires prior notice whenever
the facilities are constructed to serve a customer currently being
served by an LDC. This includes a delivery point to provide additional
volumes to that customer. We believe that the LDC should have notice
that such facilities are proposed to be built.
CD Reductions
Comments: AGA, the Joint Consumer Advocates,24 and
Rochester Gas and Electric Corp. (Rochester) urge the Commission to
permit LDCs to reduce their contract demand to the extent pipelines
bypass their facilities. The current policy predicates any CD reduction
on a contractual nexus between the capacity and the bypassing LDC
customer. However, these parties contend that LDCs often do not have
service agreements with their customers
[[Page 26588]]
and most do not deliver specific quantities to end-users. Instead, LDCs
provide retail service for whatever requirements the customer needs.
The LDC tariffs become the contract when service commences. Moreover,
they claim that the Commission's standard is overly restrictive and
fails to reflect current market realities.
---------------------------------------------------------------------------
\24\ The Joint Consumer Advocates consist of the Pennsylvania
Office of Consumer Affairs, the Iowa Office of Consumer Advocate,
and the West Virginia Consumer Advocate Division.
---------------------------------------------------------------------------
Commission Response: In Order No. 636, the Commission stated that
it would consider requests by LDCs for relief from pipeline bypass.
Where an LDC could show a nexus between the bypass and the costs at
issue, the Commission stated that it would consider reducing the LDC's
contract demand and reservation charges.25 Determining if CD
reductions are justified is dependent on the facts and circumstances in
each particular case. Any challenges to the Commission's current policy
should be made on a case by case basis. The parties have not provided
any compelling reason that would warrant the Commission's changing its
current policy in the context of this rulemaking proceeding. We note
that the proposed regulation keeps the existing policy in place, so if
a prior notice is protested on the issue of bypass, these points can be
examined as they are now.
---------------------------------------------------------------------------
\25\ See Texas Gas Transmission Corp., 70 FERC para. 61,207
(1995).
---------------------------------------------------------------------------
Tariff Must Permit Addition of Delivery Point
Comments: PGC also seeks to have the Commission eliminate the
requirement in Secs. 157.211(a)(1)(ii)and (a)(2)(iii) that the
certificate holder's tariff does not prohibit addition of new delivery
points. PGC contends that since Order No. 636, no pipeline's tariff
should prevent the construction of delivery points. The proposed
language is so broad that, notwithstanding creditworthiness provisions,
pipelines could refuse to construct for policy or other reasons, which
PGC argues is against open access provisions.
Commission Response: A pipeline's tariff sets the parameters under
which it will construct delivery points. Any construction of new
delivery points need to be consistent with the terms of the pipeline's
tariff. Pipelines cannot structure their tariffs to impede constructing
delivery points and are required to provide non-discriminatory, open
access service. Part of this service is constructing delivery points
for shippers. While we never said that pipelines had to build
facilities, if a pipeline does build facilities for one customer, it
must build facilities for other similarly situated customers on a non-
discriminatory basis.26 We recognize that there may be
certain economic parameters in a tariff, including creditworthiness,
that shippers may need to comply with in order for a pipeline to
construct a new delivery point. However, a pipeline must have a
legitimate reason not to construct facilities for shippers that request
them. While we will not eliminate the requirement in
Secs. 157.211(a)(1)(ii) and 157.211(a)(2)(iii) that ``the certificate
holder's tariff does not prohibit the addition of new delivery
points,'' pipelines must not use their tariffs as a shield when they
are requested to construct facilities. Shippers that believe that they
have been unfairly denied a new or additional delivery point can file a
complaint with the Commission detailing the adverse
action.27
---------------------------------------------------------------------------
\26\ See Missouri Gas Energy v. Panhandle Eastern Pipe Line
Company, 75 FERC para. 61,166 at 61,550 (1996).
\27\ See Arcadian Corporation v. Southern Natural Gas Company,
55 FERC para. 61,207 (1991), reh'g 61 FERC para. 61,183 (1992).
---------------------------------------------------------------------------
Prior Notice Requirement for Full Pipelines
Comments: According to APGA, attaching new customers to a full or
nearly full pipeline potentially affects the operating flexibility and
service to all existing firm customers. APGA does not object to
construction of new delivery points for existing customers where
overall pipeline firm obligations are not increased. However, before
new customers are added to a pipeline, APGA contends that there should
be prior notice and opportunity to protest, because the quality of
existing service is at issue when new customers are added.
Commission Response: APGA wants to limit the automatic construction
of delivery points to existing customers, not new customers being added
to the system because of the potential service impact on others. One of
the purposes of the blanket certificate is to expedite construction of
minor facilities that will not have a significant impact on ratepayers.
This is accomplished in part by limiting the cost of certain facilities
and requiring that service through such facilities is provided within
existing certificated volumes. However, the Commission recognized that
the blanket certificate issued under part 284 certificates
transportation of gas using available capacity on a first-come, first-
serve basis. In other words, transportation provided under a part 284
blanket certificate is within certificated volumes and pipelines
holding a part 157 certificate are authorized to construct any eligible
facilities to provide transportation authorized under a part 284
blanket certificate. Thus, nothing prevents a pipeline from
constructing new delivery points in accordance with this section to
accommodate additional service to any customer, so long as the service
is supported by a related transportation agreement under part 284.
However, pipelines cannot contract for service that depends on firm
capacity reserved for others.
Meter Facilities
Comments: Williams suggests that Sec. 157.211(a)(1) be revised to
recognize situations where a replacement or modification to meter
facilities involves a reduction in measurement capacity to accommodate
the need for greater accuracy. This would avoid confusion when a
customer's load is reduced at one delivery point, but there is no
overall reduction in customers total capacity.
Commission Response This section already allows pipelines to
``modify'' any delivery point, which would apply to the situation
Williams describes.
Lateral Associated with Delivery Points
Comments: Great Lakes states that the new definition of delivery
point precludes construction of associated lateral lines. According to
Great Lakes, this is a step backwards since certain limited-length
lateral lines can now be constructed as part of the delivery point
prior notice procedure. Great Lakes contends that the Commission should
allow lateral lines associated with new delivery points to be
constructed on a self-implementing basis, unless bypass is involved.
Commission Response: We addressed this argument in our discussion
of Sec. 157.202(b)(10). There we explained that the delivery point
itself and related facilities can be constructed under Sec. 157.211,
while the connecting lateral would qualify as an eligible facility and
generally be constructed automatically under Sec. 157.208.
Section 157.215 Underground Storage Testing and Development.
This section provides automatic authorization, subject to certain
conditions, for the construction and operation of pipeline and
compression facilities to be used for the testing and development of
underground reservoirs for the possible storage of gas.
The NOPR proposed to require the certificate holder to identify the
date construction began in revised Sec. 157.215(b)(1)(iii).
Comments: INGAA and National Fuel propose that the section be
revised to
[[Page 26589]]
reflect the Commission's current policy, which allows pipelines to
acquire facilities and recognizes that they can currently drill
injection/withdrawal and observation wells when testing and developing
storage fields.
Petal Gas Storage Company (Petal) states that the Commission should
clarify that the scope of the blanket certificate allows for the
construction of salt dome storage caverns under the automatic and prior
notice provisions of Sec. 157.208. Alternatively, if both the
construction and operation of a new salt dome cavern currently requires
formal section 7(c) authorization, Petal argues that the Commission
should at least permit the construction of the cavern (drilling and
leaching) and installation of related facilities (flow lines) under
blanket authorization, while operation of the additional facilities is
considered in a separate section 7(c). If the Commission does grant
either of these requests, the Commission should clarify that salt dome
storage facilities are included within the scope of storage facilities
eligible for automatic authorization under Sec. 157.215, or create a
new provision to allow for automatic authorization for certain
activities, such as drilling a well, leaching, and testing a cavern,
that are necessary to develop a salt dome storage cavern.
Commission Response: We agree with INGAA that specifically
including well work and acquisition of facilities would clarify the
scope and intent of this section. We will modify Sec. 157.215(a)
accordingly. We note that whatever policy might be adopted in the
landowner notification proceeding in Docket No. RM98-17-000 would apply
to any construction under the blanket certificate, including this
section.
We do not agree with Petal about automatic or prior notice
authorization for the construction and development of solution-mined
salt cavern storage. Construction, testing, and development of
conventional storage fields (depleted gas or oil field and aquifer)
generally requires more than three years for different testing and
development phases to verify various storage parameters. Moreover, a
conventional storage field developed pursuant to this authorization
cannot be placed in operation to render storage services in interstate
commerce without further Commission evaluation and authorization.
In contrast to a conventional storage field development, all
aspects of a solution-mined underground gas storage facility, which
will be created through the planned leaching of a naturally bedded or
domal salt formation, is designed before drilling and leaching. This
includes selecting an appropriate site, physically developing the
cavern and testing and commissioning the cavern. It also involves
environmental impacts different than those related to the construction,
testing, and development of conventional storage fields. Therefore,
certification of salt cavern storage facilities is more similar to
construction of mainline pipeline transportation facilities than to the
development of a conventional underground storage facility. This
section will not provide for either automatic or prior notice
authorization for the construction and development of solution-mined
salt cavern storage.
Section 157.216 Abandonment
Section 157.216(a)
The NOPR proposed a new Sec. 157.216(a)(1) to specifically
reference that receipt point facilities are eligible for automatic
abandonment authorization under the subpart F blanket certificate.
The NOPR also proposed to expand the automatic authority under
Sec. 157.216 to allow abandonment of: (1) Delivery points used to
provide firm and interruptible service, if the points are unused for 12
months and no longer under a firm contract, and (2) any eligible
facility constructed under automatic authority, subject to customer
consent.
Customer Consent and Automatic Authorization
Comments: INGAA is concerned about the requirement to obtain
written consent from all customers who have received service in the
past 12 months. Abandonment of a tie-over on a mainline or some
facilities at an interconnection with another pipeline could be very
burdensome because of the sheer number of customers that could be
affected. INGAA proposes to allow abandonment of eligible facilities if
it will not terminate or degrade service to such existing customers.
This protects customers without an unnecessary administrative burden.
National Fuel states that receipt and delivery points should
qualify for automatic abandonment if affected customers consent,
regardless of whether the facility was used in the past 12 months.
AGA wants the Commission to clarify that primary delivery points
under contracts are not eligible for automatic abandonment, even if
they have not been used in the past 12 months.
Indicated Shippers and NGSA state that the proposals to allow
pipelines to abandon receipt points automatically and by prior notice
could permit pipelines to abuse the ability to abandon service to a
point. They suggest that the abandonment of all supply facilities be
subject to prior notice, regardless of cost. They contend that without
prior notice, upstream suppliers and other parties behind the
facilities could become stranded, causing shut-in and possible loss of
reserves. According to Indicated Shippers and NGSA, the proposed
written consent applies only to transportation customers, not upstream
supply parties, including producers, pooling parties, balancing parties
and point operators that may also deliver gas into the subject
facilities. These parties may have Operational Balancing Agreements
(OBA) or other agreements with the pipeline that conform to a pro forma
agreement in the pipeline's FERC Gas Tariff. Given the cost level for
automatic abandonment, Indicated Shippers requests that the Commission
clarify how it intends to determine the cost of eligible facilities
serving a supply function for purposes of automatic abandonment.
Indicated Shippers and NGSA argue that prior notice for such facilities
protects against inappropriate abandonment of jurisdictional
facilities.
Both Indicated Shippers and NGSA request that the Commission
clarify that the term ``customers'' (for purposes of abandonment under
the blanket certificate) includes: (1) Upstream producers and other
suppliers that (a) have confirmed a nomination at the point in the
previous 12 months or (b) are not currently using the facilities, but
have within the previous 12 months made a request to the pipeline in
writing for firm or interruptible service using specific supply
facilities; (2) point operators; (3) gatherers; (4) pooling parties; or
(5) OBA parties. Indicated Shippers argues that the Commission should
require written consent of these affected upstream parties in addition
to the capacity holders in the facilities.
These parties contend that without this clarification, the new
regulations could be interpreted to allow a pipeline to abandon those
facilities using prior notice without the consent of the affected
parties behind the upstream supply facilities, if those parties do not
ship gas from the point under their own transportation agreements with
the pipeline. Unless upstream parties are considered customers, even a
protest would be illusory since consent is only needed from
``customers''.
Commission Response: INGAA believes that seeking customer consent
will be administratively burdensome if numerous customers use a
facility proposed to be abandoned. INGAA
[[Page 26590]]
suggests that abandonment be allowed as long as it will not terminate
or degrade service to existing customers. However, INGAA does not
specify how it will determine that abandonment of any facility will not
terminate or degrade existing service.
It is the Commission's statutory responsibility to ensure that
abandonment of any facility is permitted by the present or future
public convenience and necessity. In order to meet this responsibility,
the Commission will require pipelines to demonstrate that service will
not be degraded or terminated, or that service is no longer needed
through a specific facility by providing consent from customers that
have received service during the past 12 months. While there may be
certain instances where this requirement could create a burden, we
believe that our statutory responsibility under NGA section 7(b)
outweighs any such potential administrative inconvenience.
National Fuel argues that abandonment should be automatic for
receipt and delivery points, if the affected customers agree,
regardless of when the facilities were last used. National Fuel can use
Sec. 157.216(a)(2) to abandon receipt points automatically, since they
are eligible facilities, as long as it has all the customers' consent,
regardless of whether the receipt point was used in the past 12 months.
However, delivery points are not eligible facilities because of
potential bypass situations and therefore, are not covered by
Sec. 157.216(a)(2). The Commission determined that expanding the
automatic abandonment authority was appropriate only if the customer
who used the facilities during the preceding 12 months consented to
such action. Therefore, we will continue to require a prior notice
filing for delivery point facilities which were in use during the last
12 month period specifically because we are concerned with the
potential for existing customers to lose access to facilities. We
believe that any perceived delay involved in filing a prior notice is
offset by the protection the procedure gives customers.
As we stated in the NOPR, the Commission does not intend to allow
automatic abandonment of delivery points used for firm service that are
under contracts that are in force and effect, because parties paying
demand charges should retain the availability of those points.
As stated, Indicated Shippers argues that gas suppliers, point
operators, gatherers, pooling parties, and OBA parties upstream of
receipt points and gas supply facilities should be included as
customers from whom consent is required prior to facilities being
abandoned automatically. The Commission believes that its proposal to
allow automatic abandonment of receipt or delivery points that have not
been used for a one year period provided it is no longer controlled by
a firm contract is appropriate. Pipelines should have the flexibility
to abandon facilities that are no longer used and useful. To the extent
that upstream suppliers do not have contract agreements with the
pipeline but, instead, have gathering, pooling, balancing, or some
other type agreement with the pipeline's shippers, they should seek the
appropriate remedy under those contracts. We note that pipelines are
not designed to stand by without charging for service.
Sections 157.216(d) (4) and (5)
The NOPR proposed to modify Sec. 157.216(d)(4) and add new
Sec. 157.216(d)(5) to require that pipelines supply: (1) The date earth
disturbance related to an abandonment began, and (2) the date
clearances were actually received under the Endangered Species Act, the
National Historic Preservation Act, and the Coastal Zone Management
Act.
Comments: Michigan Gas Storage contends that clearances under the
National Historic Preservation Act should not be required where the
same earth that was disturbed for construction is redisturbed for
abandonment. It states that paragraphs (d) (4) and (5) should be
limited to abandonment of facilities where there is earth disturbance
beyond the earth disturbance involved in the original construction.
Commission Response: If there is no ground disturbance or if the
disturbance is similar to the previous ground disturbance, the report
might consist simply of the applicant's statement that there is no
ground disturbance or the SHPO agreement that the ground disturbance
does not constitute a concern. However, since it is difficult to
ascertain the many situations that could arise and the many exceptions
possible, the Commission will still require that the applicant obtain
agreement from the appropriate SHPO in order to avoid the requirement
for a more detailed report. Of course, as with all the resource
reports, the option is there to explain the absence of material based
on the nature of the project. It will then be up to the staff to
determine if the reason is adequate.
Section 157.217--Changes in rate schedules
The NOPR proposed to remove this section, which provides pipelines
with automatic authority to permit customers to change rate schedules.
Comments: Duke Energy believes that if a pipeline and its customer
both desire to convert to part 284 service, they should be able to do
so on an automatic and mutually agreeable basis, so long as it is non-
discriminatory. Duke Energy understands that the Commission has limited
its interpretation of this section in the past, citing Northwest
Pipeline Company.28 However, it believes that the regulation
should continue and be clarified to allow section 7(c) customers to
convert to part 284 service. Such a conversion would be consistent with
Order No. 636.
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\28\ 49 FERC para. 61, 162 (1989), reh'g denied, 50 FERC para.
61, 200 (1990).
---------------------------------------------------------------------------
Commission Response: We agree. The Commission's policy is to foster
conversion from individually certificated transportation and storage to
open access transportation and storage. Therefore, we will revise
Sec. 157.217 to specifically provide that pipelines can change rate
schedules, at a customer's request, for the purpose of converting part
157 transportation or storage service to a complementary part 284
service. This section will provide automatic abandonment authorization
for the part 157 transportation service, obviating the need for
pipelines to file separate abandonment applications. However, pipelines
will need to make a filing to reflect removal of the part 157 rate
schedule from their tariff. We will also grant a generic waiver, to the
extent necessary, to allow the converting shipper to retain its
existing capacity through the conversion. We will also require that the
rate the shipper will pay after conversion to part 284 will reflect all
the maximum rates and charges associated with the service.
Appendix II to Subpart F--Procedures for compliance with the National
Historic Preservation Act of 1966 under Sec. 157.206(d)(3)(ii)
The NOPR proposed minor editorial revisions, such as changing the
reference in the title from ``Sec. 157.206(d)(3)(ii)'' to
``Sec. 157.206(b)(3)(ii)''.
Comments: The Council made several comments relating to the
inclusion of interested persons in the regulations for complying with
cultural resources requirements. Specifically, it said that involvement
of interested persons needs to be clarified in Appendix II. It said
that appendix II does not offer any
[[Page 26591]]
explicit guidance on consultation with interested persons. In
particular it doesn't specifically refer to the authority given to
certain tribes to take over the function of the SHPO on their lands.
Further, in reference to Sec. 380.12(f), since the rule does not
explicitly provide for the involvement of interested persons in the
development of mitigation/treatment, the project sponsor could propose
a Treatment Plan, inappropriately, without consultation with any
interested persons. Finally, the Council argues that the rule does not
go far enough in providing a consultative role for interested persons,
since Sec. 380.14(a) states only that the Commission will ``take into
account views of interested parties.''
Commission Response: With respect to appendix II, to better
indicate tribal authority we will modify the first sentence of
paragraph 1(a) to read: ``* * * procedures used by the appropriate
Tribal or Federal land managing agency * * *'' In addition reference to
the Tribal Historic Preservation Officer (THPO) should be added in most
parts of the regulation referring to the SHPO. We will add reference to
the THPO as appropriate, including a new definition of THPO in appendix
II: ``(d) ``THPO'' means the Tribal Historic Preservation Officer.''
And in paragraph (1)(b) ``If there is no SHPO or THPO, if appropriate,
or if the SHPO or THPO, as appropriate, decline to * * *''. Similar
changes have been made to paragraphs (3) through (9).
We disagree with the Council and believe that the rule, in
general, adequately provides for the involvement of interested parties.
The rule references OPR's ``Guidelines for Reporting on Cultural
Resources Investigations'' and the pertinent sections--III.B.2., IV.A,
V.B.12, VI.B.3., VI.C., VII.C., VIII.D., which provide for public
participation throughout the process. In addition, the Commission's
environmental process, which includes sending out Notices of Intent,
holding scoping meetings, and issuing Environmental Assessments or
Environmental Impact Statements, allows us to explicitly solicit
comments from any potentially interested persons regarding cultural
resources.
With respect to Treatment Plans, as we have already stated, the
guidelines do indicate the need to involve interested persons. However,
there would be nothing wrong with an applicant proposing such a
Treatment Plan since the Commission's environmental process would
ensure the involvement of interested persons in the formulation of the
ultimate Treatment Plan to be used. The applicant's plan is merely a
starting point.
While a company can file a Treatment Plan in resource report 4
(Sec. 380.12(f)), they don't have to. The guidelines at section VIII.D
provide for review of a Treatment Plan by interested persons even if
the Treatment Plan is filed with the Commission early in the process.
Appendix II--Paragraph (7)
Comments: The Council contends that the citation in paragraph (7)
to 36 CFR Sec. 800.3(a) should be to 36 CFR Sec. 800.9 instead.
Commission Response: We agree the reference should be changed.
However, we believe a more appropriate reference is to 36 CFR
Sec. 800.5 rather than 36 CFR Sec. 800.9. Under the current Council
regulations, Sec. 800.5 ``Assessing effects'' references Sec. 800.9
applying the ``Criteria of Effect and Adverse Effect,'' accomplishing
the effect the Advisory Council is seeking.
Appendix II--Arbitration
Comments: The Council states that Appendix II does not provide for
arbitration of disputes or cases where the SHPO may choose not to
consult with the project sponsor.
Commission Response: This is not correct. Paragraph 1(b)
specifically deals with the case where the SHPO declines to consult. If
there is a dispute that can't be resolved, then the project is not
authorized under this program, and the only way it can proceed is
through the standard certificate process (see paragraph (9)). There was
no intent to provide for arbitration of a project the Commission may
not be aware of prior to construction.
D. Part 284--Certain Sales and Transportation of Natural Gas Under the
Natural Gas Policy Act of 1978 and Related Authority
Part 284 sets forth the general provisions and conditions that
govern certain sales and transportation of natural gas under the NGA
and the NGPA.
Subpart J--Blanket Certificates Authorizing Certain Natural Gas Sales
by Interstate Pipelines
Section 284.288--Reporting Requirements
This section sets forth the annual reporting requirements for an
interstate pipeline making sales under this subpart. Blanket sales
certificates were issued to interstate pipelines in Order No. 636. The
NOPR sought comment on whether the information required by this section
is still necessary or whether it has become obsolete, leading to
removal of the section from the regulations.
Comments: Indicated Shippers argues that the requirement is far
from obsolete and should be retained, since the circumstances leading
to imposing the reporting requirements remain a reality. Interstate
pipelines continue to maintain monopoly control over gas
transportation. Thus, there is no basis for eliminating this
requirement. Indicated Shippers contends that the information is
necessary to determine if the pipeline is exercising market power. The
requirement acts as a deterrent to unlawful conduct that otherwise
would go unreported.
Conversely, National Fuel and Williston Basin support discontinuing
the reporting requirement.
Commission Response: We no longer place the same emphasis on this
report as we did when it was implemented. We believe that eliminating
this report will not have a detrimental impact on the customers of any
pipeline engaging in unbundled sales under subpart J of part 284.
Pipelines engaging in such sales are fully unbundled and have in place
system transportation rates that reflect their cost of service. These
transportation rates will not be affected by any unbundled sales a
pipelines makes under subpart J. Therefore, in the interim, the volume
of any such sales and the associated revenue will not impact the rates
customers currently pay for service. When a pipeline files a section 4
proceeding, the information related to subpart J sales will be set out
in the pipeline's Statement G, Secs. 154.312(j) (i) and (ii), which
require, among other things, revenues and billing determinants by rate
schedule and customer name. It is in the context of a rate case that
the costs associated with any unbundled sales can be scrutinized.
E. Part 375--The Commission
Part 375 sets forth the general provisions of the Commission, the
procedures for Sunshine Act meetings and delegations of authority.
Subpart C--Delegations
Section 375.307 Delegations to the Director of the Office of Pipeline
Regulation.
Sections 375.307(a)(1) and (a)(4)
The NOPR proposed to increase the $5,000,000 spending limit to
match the prior notice limits set forth in Sec. 157.208(d).
Comments: AGA requests that the Commission expressly preclude
pipelines from segmenting their projects to meet this spending
threshold. AGA
[[Page 26592]]
suggests that this section be revised to include:
``An applicant must certify that the proposed project has not
been improperly segmented in order to meet the spending limit
specified in Sec. 157.208(d).''
Commission Response: We reiterate that updating and broadening the
certificate regulations is designed to facilitate the filing of more
complete applications and to provide faster processing of applications
once they are filed. We do not intend for these changes to provide
opportunities for pipelines to circumvent the intent of our regulations
and policies. However, rather than revise the delegation of authority
regulations, we will instead revise the blanket certificate
regulations. Therefore, we will revise section 157.208 to specifically
state that pipelines shall not segment projects in order to meet the
spending limits in Sec. 157.208(d).
Section 375.307(a)(3)
The NOPR proposed to remove an obsolete condition in
Sec. 375.307(a)(3), which delegates abandonment authority to the
Director of OPR for gas purchase facilities with a construction cost of
less than $1 million or the deletion of delivery points.
Comments: NGSA requests that this section be modified to take into
account the financial and operating interests of upstream producers,
gatherers and point operators attached to facilities proposed to be
abandoned. NGSA raises the same argument it raised regarding a similar
proposal to modify the abandonment of receipt points under
Sec. 157.216.
Commission Response: For the same reasons set forth in our answer
in Sec. 157.216, we will deny this request.
Section 375.307(a)(10)
The NOPR proposed new Sec. 375.307(a)(10) to delegate to the
Director of OPR the authority to dismiss protests to prior notice
filings that the Director determines do not raise a substantive issue
and fail to provide any specific detailed reason or rationale for the
objection.
Comments: Sempra Energy states that the Commission should recognize
that not all applications have merits and that opponents or protestors
may not have adequate information at the time of protest to prevent
dismissal of their protest. This delegation calls for legal conclusions
by the OPR Director rather than factual holdings or ministerial action
on routine matters and is not truly appropriate for delegation.
Commission Response: As we noted earlier, the authority delegated
to the Director of OPR to dismiss protests is intended to apply only to
situations where unsubstantiated allegations are raised, and only
applies to such protests filed in response to prior notice applications
filed under Sec. 157.205.
F. Part 380--Regulations Implementing the National Environmental Policy
Act
The regulations in Part 380 implement the Commission's procedures
under the NEPA. These regulations supplement the regulations of the
Council on Environmental Quality (CEQ), 40 CFR parts 1500 through 1508
(1986). Part 380 essentially follows the CEQ procedures concerning
early and efficient review of environmental issues, public notice and
participation, scoping, interagency cooperation, comments, and timing
of decisions on proposals.
Section 380.12--Environmental Reports for Natural Gas Act Applications
The NOPR proposed to replace part 380 appendix A (guidelines for
the environmental report), which is out of date and contains numerous
errors, with the currently optional appendix G resource reports in the
electronic filing requirements, which virtually all companies are now
using instead of appendix A. In Sec. 380.12 the NOPR listed, in detail,
the information the Commission needs to conduct an environmental review
of a proposal under NEPA. The NOPR proposed that applications not
meeting a minimum specified portion of these requirements will be
rejected.
Mileposts and Map Checklist
Comments: National Fuel states that all references to mileposts in
this section should be revised to permit the use of conventional survey
centerline stationing if available. Most companies use field survey,
stake and mark pipeline centerlines using conventional survey
stationing, which National Fuel contends is far more accurate than
mileposts. They assert that survey stationing provides a discrete
location identified for each feature within each milepost. National
Fuel argues that companies should not be required to convert
conventional survey stationing references to mileposts merely to file
applications. In addition, National Fuel states that it would be
helpful if the Commission included a mapping summary table or checklist
in Sec. 380.12, since the mapping requirements are spread throughout
the section.
Commission Response: The intent of all the ``mileposting''
requirements is to have a unique and uniform method of identifying the
position of resources on the route of the proposed pipeline. We will
accept any method that accomplishes this goal; therefore we add a new
Sec. 380.12(b)(6) to read:
Whenever this section refers to ``mileposts'' the applicant may
substitute ``survey centerline stationing'' if so desired. However,
whatever method is chosen should be used consistently throughout the
resource reports.
Rather than cluttering the regulation with a listing of where
things can be found, we will provide a guidance list of the Commission
regulations that require maps and post it on our INTERNET website. The
following sections include references to maps or plat plans in the
regulations: 380.12(c)(1); 380.12(c)(2)(i)(C); 380.12(c)(3)(i);
380.12(c)(3)(iii); 380.12(c)(4); 380.12(d)(4); 380.12(k)(2)(iv);
380.12(l)(2); 380.12(l)(3); and 380.12(o)(1, 2-4, & 6).
Minimum Checklist Requirement
The NOPR proposed to add a checklist of minimum filing requirements
for environmental reports (Sec. 380.12) as appendix A to part 380;
missing items will result in an application being subject to rejection
under Sec. 157.8.
Comments: Great Lakes and INGAA state that some of the information
required in the checklist is not available at the time of filing. For
example, information on all access roads and contractor staging yards
by milepost can not be finalized until after a project is bid out and
the contractor is able to assess the project. Some information, such as
description of proposed compressors, including manufacturer name, model
number and horsepower rating will harm the bidding processes to the
detriment of ratepayers. Other information such as wildlife resource
surveys is seasonally dependent. INGAA asks the Commission to consider
these realities when deciding whether to reject an application. INGAA
recommends that the Commission modify the checklist to allow more
general information to be provided at the time of filing, along with a
schedule of when more detailed info will be provided.
Great Lakes requests that the Commission modify the checklist to
designate certain data (including data regarding wetlands, T&E surveys,
and cultural resource surveys) which, although preferred at the time of
filing, may be omitted without the filing being rejected provided that
the pipeline includes an acceptable schedule for filing any omitted
material. The new regulations should recognize both failure to obtain
landowner consent to
[[Page 26593]]
entry and seasonal considerations such as weather as excusing a
pipeline from supplying environmental information at the time of
filing.
Enron agrees with INGAA that some information is not available at
the time of filing. Enron suggests that the following items be removed
from the checklist: Wetland maps and delineation, Sec. 380.12(d)(4);
contractor and pipe storage yards, Sec. 380.12(j)(1)(iv), hydrostatic
test data, Sec. 380.12(d)(6); planned residential and commercial
business development, Sec. 380.12(j)(3); and manufacturer's name and
model numbers for compressor units, Sec. 380.12(k)(4). Enron contends
that a filing should not be rejected based on environmental information
that is not available at time of filing.
INGAA recommends that the following be added to the end of
Sec. 380.12(a)(2):
Each topic of the checklist should be addressed or its omission
justified. Any information missing at the time of filing shall be
identified as to why it is missing and when the applicant
anticipates it will be filed. The Director shall consider the
proposed timing of the filing of missing information in concert with
that of other competing applications, if any. If this missing
information is needed to complete a NEPA analysis of a competing
application within a reasonable time frame, the Director will notify
the applicant of a revised time schedule for the needed information.
Failure to provide the data within the time schedule may result in
the delay of processing or rejection of the application.
Process Gas Consumers opposes the proposal to reject outright
filings that fail to provide the items in the checklist. Pipelines may
only be able to file interim or conditional approvals from relevant
environmental agencies at time of filing. Commission should remain
flexible in accepting applications for which the pipeline demonstrates
that it is actively pursuing all required environmental permits and
data.
Commission Response: As stated in Sec. 380.12(a)(2), the applicant
should explain the absence of any material specified in the resource
report description in the regulation and provide a schedule for filing
the missing information. If the missing material is part of the minimum
filing requirements, then the filing may be rejected if the material is
missing because of inadequate planning. It is up to the applicant to
prepare for the filing for its project far enough in advance to
maximize the level of detail in the reports. While it may not be
possible to initially determine all the access roads or staging yards
required by a project, companies with the expertise to build pipeline
projects are certainly capable of outlining a reasonable set of roads
and staging areas that will cover most of the needs of the project. In
fact, most current applications include this information when they are
filed. As for wildlife surveys, there are widely available lists of the
sensitive species for which surveys may be needed in a project area,
and every effort should be made to plan for these surveys in time to
meet project needs. In many cases, it will still be possible to survey
for habitat even if the species will not be there. The wetlands list
can be provided based on NWI maps or similar sources if delineations
have not been done by the time of filing of the application.
Nevertheless, the staff will review the reasons given for the absence
of required material when determining whether an application should be
rejected.
As to INGAA's suggestion, the presence or absence of a competing
application is irrelevant to whether an incomplete application should
be accepted. However, to make it clear that there is room for
discretion in the event a good reason is provided by the applicant, we
will add the following wording to Sec. 380.12(a)(3): ``* * * will
result in rejection of the application unless the Director of OPR
determines that the applicant has provided an acceptable reason for the
item's absence and an acceptable schedule for filing it. Failure to
file within the acceptable schedule will result in rejection of the
application.''
Finally, contrary to Process Gas Consumers' comment, permits are
not required by the checklist.
Cumulative Effects
New Sec. 380.12(b)(3) requires the pipeline to identify the effects
of construction, operation and termination of a project, including the
cumulative effects resulting from existing or reasonably foreseeable
projects.
Comments: INGAA is concerned that a new, more detailed level of
analysis is proposed by requiring identification of ``cumulative
effects'' resulting from existing or reasonably foreseeable projects.
INGAA contends that this is more appropriate on the Environmental
Impact Statement (EIS) level and is excessive for environmental report
analysis. It argues that the provision should be clarified or deleted.
Commission Response: The CEQ regulations include ``cumulative''
effects in the definition of ``effects'' or impacts. Cumulative effects
are, in fact, part of the current specification in appendix
G.29
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\29\ See the introductory paragraph (c) in the appendix.
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Location Maps
New Sec. 380.12(c)(1) is part of Resource Report 1 and requires
pipelines to describe and provide location maps of all facilities.
Comments: INGAA's comments here mirror its comments to
Sec. 380.12(a)(2). It states that certain of the specific requirements
in paragraph (c)(1) will be difficult to provide at the beginning of a
project.
Response: Our response is the same as stated for Sec. 380.12(a)(2).
If the material is part of the minimum filing requirements, then the
filing may be rejected if the material is missing because of inadequate
planning.
Nonjurisdictional Facilities
Proposed Sec. 380.12(c)(2) lists the information the Commission
needs to consider the environmental impact of related nonjurisdictional
facilities that would be constructed upstream or downstream of the
jurisdictional facilities for the purpose of delivering, receiving, or
using the proposed gas volumes.
Comments: Enron, INGAA, Koch Gateway, and Williams state that
requiring information relative to the four-factor test creates conflict
between the pipeline and the nonjurisdictional customer building
related facilities. They argue that nonjurisdictional companies may be
unable or unwilling for competitive reasons to provide such information
to the pipeline. The environmental review and permitting process for
these nonjurisdictional facilities does not encompass the same filing
requirements as the Commission's process. Thus, they contend,
information required by this proposed regulation may have to be created
specifically for the Commission before the status of the facilities is
reviewed under the four-factor test.
Duke Energy shares the same basic concern. It requests that
pipelines not be placed in peril of rejection with respect to this
requirement. Duke Energy proposes that the requirement be deleted from
the minimum requirements list, or alternatively, the Commission clarify
that: (1) A good faith statement that the information being provided is
all that is available to the applicant at the time of filing; or (2) a
statement that the pipeline has reached the conclusion that the
nonjurisdictional facilities are not subject to Commission
environmental review, will suffice to avoid rejection.
AGA is concerned that the Commission intends to impose conditions
upon facilities that are not within its jurisdiction. AGA does not
[[Page 26594]]
want to subject nonjurisdictional facilities to duplicative
environmental reviews by both the Commission and state agencies. It
requests that the Commission clarify that it will not impose conditions
on nonjurisdictional facilities or duplicate existing state
environmental requirements.
Commission Response: The information requested for
nonjurisdictional facilities is almost exclusively descriptive and
deals with the type of facility and its location. This is not
information that the applicant should have any trouble obtaining from
the customer. The only detailed environmental material relates to
cultural resources and endangered species. Once the applicant knows
what nonjurisdictional facilities are intended and their location, it
will not be difficult to get determinations from the appropriate
agencies on whether additional information is needed. At the point the
nonjurisdictional company indicates it is, or is not, going to do
surveys the applicant will be able to so inform the Commission.
Sections 380.12(a)(2) and (a)(3) will allow the applicant to show why
the information could not be provided.
The Commission is not expanding its jurisdiction beyond its current
boundaries. The wording says ``the extent to which the project is under
Commission jurisdiction.'' For the purposes of the four factor test,
``project'' means all the facilities that are associated with the
jurisdictional proposal and that which as a whole define the reason for
the application.
Electronically Generated Maps
New Sec. 380.12(c)(3)(i) requires the pipeline to file current,
original United States Geological Survey (USGS) topographical maps or
equivalent maps covering the route of the proposed project.
Comments: Enron and INGAA state that electronically generated USGS
maps are currently accepted by the Commission. They request that the
Commission clarify that electronically generated equivalent maps will
continue to comply with this requirement.
Commission Response: The requirement is for ``original'' USGS maps
or ``maps of equivalent detail.'' If the electronically generated maps
can provide the ``equivalent'' level of detail, then they are
acceptable.30
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\30\ See the discussion of Sec. 380.12(c)(3)(ii) concerning up-
to-date material.
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Aerial Photographs
New Sec. 380.12(c)(3)(ii) requires the pipeline to file original
aerial photographs or photo-based alignment sheets not more than one
year old showing the route of the proposed project and the location of
major aboveground facilities.
Comments: Duke Energy, El Paso, Enron, INGAA, and National Fuel
argue that when there has not been a change in land use, aerial
photographs a few years old still accurately depict current conditions.
They contend that to require new photographs could cause significant
delays since they can only be taken when weather and foliage do not
inhibit clear shots. These parties suggest that the regulation not
prescribe a set time frame for when the photograph must have been
taken, but require that the photograph, regardless of age, reasonably
depict the current land usage. El Paso suggests allowing photographs
not more than three years old.
Enron states that the requirement to provide a 0.5 mile-wide
corridor is burdensome. It suggests no set distance be required, in
order to allow enough flexibility that the width and scale depicted on
aerial photographs can be based on the land use the proposed facilities
will impact.
Williston Basin wants the Commission to clarify that digital
photographs are acceptable as a more economical and efficient
alternative to aerial photographs.
Commission Response: Upon reconsideration, we believe it is
appropriate to allow older aerial photos as long as the pipeline
certifies that the aerial photographs accurately depict current land
use and development in the project area. Further, the applicant should
draft locations of any new houses on the photographs.
At the requested scale a one-half mile wide corridor is about 5
inches wide. The aerial photographs that are currently filed are
commonly 24 inches square. USGS topographic maps are substantially more
than 1 foot wide in each dimension with each inch of map covering 2,000
feet or almost 0.5 mile. This requirement will only require obtaining
adjacent maps where the proposed facilities are parallel and adjacent
to the border or cross a corner of the map or photograph.
We will change the wording of Sec. 380.12(c)(3)(ii) and appendix A
to clarify that the Commission requires aerial images, not necessarily
emulsion based photographs. We will allow older images as long as they
are still an accurate representation of the current conditions. Older
images should be modified to show any residences constructed since the
image/photograph was made. The new wording is: ``Original aerial images
or photographs or photo-based alignment sheets based on these sources,
not more than one year old (unless older ones accurately depict current
land use and development) * * * and including mileposts. Older images/
photographs/alignment sheets should be modified to show any residences
not depicted on the originals.'' In Resource Report 1 in appendix A,
the text of the fourth requirement should read: ``Provide aerial images
or photographs or alignment sheets based on these sources with
mileposts showing the project facilities; (Sec. 380.12(c)(3)).''
Construction and Restoration Methods
New Sec. 380.12(c)(6) requires that the proposed construction and
restoration methods be described and identified by milepost.
Comments: Enron and INGAA state that construction and restoration
methods can be categorized based on the existing land use, which is
required, and by milepost in Resource Report 8 and Sec. 380.12(j)(2).
Therefore, it is not necessary to provide the information in
Sec. 380.12(c)(6). INGAA proposes to remove the phrase ``and identify
by milepost.'' Further, Enron requests an explanation of the phrase
``longitudinally under roads.''
Commission Response: We disagree with INGAA's comment. The
discussion in Sec. 380.12(c)(6) deals with special construction
techniques that would be used in certain areas. These areas may or may
not correspond to the land use areas described in Sec. 380.12(j)(2).
For instance, ``rugged topography'' does not correspond to any
particular land use category.
As to Enron's request, ``longitudinally under roads'' means under
the road and parallel to its length. This is in contrast to crossing
the road. We will replace the above words in Sec. 380.12(c)(6) with:
``parallel to and under roads.''
Estimated Workforce Requirements
New Secs. 380.12(c)(7) and (g)(3) require the pipeline to provide
the estimated workforce requirements for each project.
Comments: Enron and INGAA are concerned with having to describe
workforce requirements at the time of filing. They contend that this is
not currently required by appendix G. At time of filing, pipelines have
not bid out the project and any estimate could impact the labor
component of bid responses. They argue that the Commission should allow
applicants to
[[Page 26595]]
submit such data after a contractor has been selected.
Commission Response: Contrary to INGAA's belief, Resource Report 5
in the current requirements in appendix G does, in fact, ask for
workforce requirements. The Commission believes that the pipelines are
familiar enough with the requirements for building pipelines that they
can adequately estimate the workforce requirements needed to comply
with this requirement without having chosen a contractor.
Names and Addresses of Landowners
New Sec. 380.12(c)(10) requires the pipeline to provide the names
and addresses of all landowners whose land would be crossed by the
project facilities.
Comments: INGAA contends that this requirement involves the
landowner notification issue in the proceeding in Docket No. RM98-17-
000. INGAA proposes to notify landowners the following business day
after FERC assigns a docket number and notices the application. When
the Commission notifies the pipeline of its intent to prepare an EA or
EIS, the pipeline would then provide the Commission with a list of
landowners of record (landowners receiving most recent tax notice) that
may be subject to eminent domain within 10 days of the Commission's
request. INGAA requests that the Commission adopt this proposal.
Commission Response: While it is true that the landowner
notification issue is being considered under Docket No. RM98-17-000,
that docket concerns whether, when, and how, the pipelines should
notify landowners of a project (including which landowners should be
notified) separate from the Commission's notification of scoping under
the NEPA process. The Commission will still need to be able to notify
certain landowners as part of the NEPA notification process and that is
the purpose behind this requirement. Since INGAA has proposed and most
of the pipelines which commented on the notice in the Docket No. RM98-
17-000 agreed to notify landowners very shortly after filing, there
should be no difficulty in providing these names and addresses to the
Commission at the time of filing. Any other method can only slow up the
processing of applications by delaying the issuance of the scoping
notice.
Resource Report 2--Water Use and Quality
Comments: The Department of Interior (Interior) contends that the
first sentence of Sec. 380.12(d)(1) should be modified to read:
Identify and describe by milepost, perennial waterbodies and
municipal water supply or watershed areas, especially designated
surface water protection areas and sensitive water bodies, and both
seasonal and permanent wetlands that would be crossed.
Commission Response: The change to Sec. 380.12(d)(1) is
unnecessary. U.S. Army Corp of Engineers (COE) jurisdictional wetlands
encompass both types of wetland. Section 380.12(d)(4) makes it clear
that delineations using the current Federal methodology are required
and these delineations will identify all COE-jurisdictional wetlands.
Wetland and Waterbody Mitigation Measures
New Sec. 380.12(d)(2), in Resource Report 2, Water use and quality,
requires pipelines to compare proposed mitigation measures with the
staff's current ``Wetland and Waterbody Construction and Mitigation
Procedures'' (WWCMP or Procedures).
Comments: Enron and INGAA argue that there may be methods approved
by state and local agencies that accomplish the same goal as the WWCMP,
but that are not the same as the Procedures. They ask the Commission to
clarify that pipelines can show that certain procedures are not
necessary for a particular project and thus not required. Enron wants
the Commission to clarify that reference to the Procedures is not
intended to change the status of this document as a guideline. It does
not believe these Procedures should be cited in regulations and
proposes that they be removed from Sec. 380.12(d)(2).
National Fuel seeks extensive revision to the Procedure's manual,
particularly sections V.B.2.c, V.B.6.b & c, V.B.7.c, VI.B.3.
Williams states that the requirement in paragraph (d)(1) to
identify waterbodies is the same requirement as in (e)(2). Williams
states that the requirements should only be included in one resource
report.
Interior states that placing barriers in pipeline trenches to
ensure that surface or ground water is not diverted or drained from
wetlands should be a required mitigation measure.
Commission Response: The reference to the WWCMP does not create a
requirement that these procedures be used. They are simply a set of
procedures that the Commission believes will adequately protect these
resources during construction. Therefore, if the applicant indicates
that they will be used for its project the staff's review time will be
minimized for these resources. There will certainly be situations where
portions of the procedures are not applicable. The applicant is
required to inform the Commission of those project-specific situations
in order for the Commission to better understand the project's
potential for environmental impact.
Since the Procedures are not being codified by this rulemaking we
will not modify or update them here. The staff of the Office of
Pipeline Regulation is continually looking at the Procedures to see if
modification is in order. As changes are made to the current
guidelines, they will be noticed and the revised version will be made
available.31
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\31\ The WWCMP are currently available on our Internet website
at http://www.ferc.fed.us/gas/environment/gidlines.htm.
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The references to wetlands in Secs. 380.12(d)(1) and 380.12(e)(2)
are not the same. Section 380.12(d)(1) requires a listing of the
wetlands that are identified on the maps discussed in
Sec. 380.12(d)(4). Section 380.12(e)(2) requires a discussion of the
fish, wildlife or vegetation of significance in the wetlands. The
difference is in classification of wetlands versus their habitat use.
Nevertheless, the applicant can always indicate that the material
required in one resource report can be found in another by cross-
referencing it, if it is, in fact, duplicative.32
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\32\ See section 380.12(a)(2).
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As to Interior's comments, there are a number of mitigation
measures that are identified in the Procedures, among them a
requirement to maintain the hydrology of wetlands. Applicants are
required to compare their proposals to these procedures. Our staff will
review the proposals to make sure wetlands are properly protected.
Staging Areas
New Sec. 380.12(d)(3) requires applicants to describe typical
staging areas need at waterbody and wetland crossings.
Comments: Interior states that Sec. 380.12(d)(3) should be worded
to ensure that staging areas are not placed in wetlands.
Commission Response: There are a number of mitigation measures that
are identified in the Wetland and Waterbody Construction and Mitigation
Procedures, among them a requirement to keep extra work space away from
wetlands. Applicants are required to compare their proposals to these
procedures. It is important to note that it may not always be possible
to keep staging or other work areas entirely out of wetlands.
Wetlands Maps
New Sec. 380.12(d)(4) requires identifying wetlands by either using
[[Page 26596]]
National Wetlands Inventory (NWI) maps or the alternative USGS maps.
Comments: INGAA states that the minimum checklist only allows
filing of NWI maps and should accommodate the use of both types of
maps.Enron states that wetland maps should not be a minimum checklist
item, or the checklist should be revised to allow the alternative of
initially filing the best available information, supplemented at a
later date when delineation is completed.
Interior states that Sec. 380.12(d)(4) allows filing of NWI maps to
show wetland crossings. Because these maps may not show all
jurisdictional wetlands, Interior argues that the applicant should be
required to verify wetland locations by conducting field delineations
verified by the COE.
Commission Response: We intended Sec. 380.12(d)(4) to require
applicants to obtain NWI maps in all cases where they are available.
State wetland maps, not USGS maps, should be provided if NWI maps are
not available. As the checklist states, these maps are needed at the
time of filing for general routing and alternative routing
considerations. This section has been modified to make it clear that
the Commission wants a field delineation of wetlands. Although actual
wetland delineations are required, they can be filed later if
necessary. In any event, they must be filed before the staff's EA or
EIS can be completed. Section 380.12(d)(4) and the checklist will be
reworded as follows:
Include National Wetland Inventory (NWI) maps. If NWI maps are
not available, provide the appropriate state wetland maps. Identify
for each crossing, the milepost, the wetland classification
specified by the U.S. Fish and Wildlife Service and the length of
the crossing. Include two copies of the NWI maps (or the
substitutes, if NWI maps are not available), directed to the
environmental staff, clearly showing the proposed route and
mileposts. Describe by milepost, wetland crossings as determined by
field investigations using the current Federal methodology.
The seventh requirement in the checklist (appendix A) for Resource
Report 2 will have the following parenthetical added after the word
``maps'':
(or the appropriate state wetland maps, if NWI maps are not
available).
Hydrostatic Test Water
New Sec. 380.12(d)(6) relates the information required when
pipelines discharge hydrostatic test water.
Comments: Enron and INGAA contend that a permit is required from
state and federal agencies other than the Commission and that such
testing is not done until a pipeline is installed. They argue that such
information is not necessary, is not the Commission's responsibility
and that the requirement should be deleted from Resource Report 2.
Alternatively, Enron requests that such information not be included in
the minimum checklist, since such testing does not generally occur
until just prior to placing facilities in-service.
Commission Response: While it is true that there are other agencies
which have responsibilities with respect to hydrostatic test water,
that does not alleviate the Commission's responsibility under NEPA to
know the effects of projects under its jurisdiction. Further, the
Commission can not simply defer to what another agency will do in a
particular case unless it has some independent knowledge of the
potential impact. Further, we note that the minimum filing requirements
do not include any information related to hydrostatic test water,
although such information is needed to complete the EA or EIS.
Terrestrial Habitats
New Sec. 380.12(e)(2), part of Resource Report 3, Fish, wildlife,
and vegetation, requires a description of terrestrial habitats,
including wetlands, that might be affected by a proposed project.
Comments: Interior states that the first sentence of
Sec. 380.12(e)(2) should be modified to read: ``Describe terrestrial
habitats, including wetlands, typical wildlife habitats, and rare or
unique habitats, that might be affected by the proposed action.''
Commission Response: We agree and will modify section 380.12(e)(2)
to read: ``* * * typical wildlife habitats, and rare, unique or
otherwise significant habitats, that might * * *''.
Aquatic and Terrestrial Species
New Sec. 380.12(e)(4), part of Resource Report 3, Fish, wildlife,
and vegetation, requires a description of the impact of construction
and operation on aquatic and terrestrial species and their habitats.
Comments: INGAA states that while general information can be
provided at the time of filing, detailed information cannot be
furnished until all state and federal agency work is done and field
survey work is completed. It contends that requiring detailed
information at the time of filing could delay a project by more than
one year. INGAA recommends that the checklist require general
information at the time of filing and the submission of more detailed
information at a later date.
Response: The only site-specific information required by
Sec. 380.12(e)(4) deals with significant habitats and communities.
These areas will normally be known to state and local agencies which
must be consulted by the applicant. In most cases, surveys are not
needed to satisfy the requirements of this paragraph, general
information will suffice. However, surveys should be done where the
state or local agencies identify species with which they are concerned.
While, the checklist does not require these surveys to be complete at
the time of filing, the Commission sees no reason why the pipeline
should not have that information available at the time of filing. We
will modify the last sentence of this paragraph by replacing the comma
after ``vegetation'' with a period and the remainder of the sentence
will read:
Surveys may be required to determine specific areas of
significant habitats or communities of species of special concern to
state or local agencies.
Endangered or Threatened Species
New Sec. 380.12(e)(5) requires an applicant to identify all
federally listed or proposed endangered or threatened species that
potentially occur in the vicinity of a proposed project.
Comments: Interior states that the first sentence of Sec.
380.12(e)(5) should be modified to read:
Identify all federally-listed or proposed endangered or
threatened species and critical habitat that * * *
Commission Response: We agree and will also remove the reference to
state species in this section, since it duplicates the reference in
Sec. 380.12(e)(4). We will modify Sec. 380.12(e)(5) to read:
* * * or threatened species and critical habitat that
potentially occur in the vicinity of the project.
Cultural Resources:
New Sec. 380.12(f), Resource Report 4, sets forth guidelines for
pipelines relating to filing cultural resource information.
Comments: Enron wants the Commission to remove reference to ``OPR's
Guidelines for Reporting on Cultural Resources Investigations,''
stating that the guidelines should not cited in the regulations.
INGAA contends that the report should not be required for projects
within previously disturbed areas, such as an existing yard, consistent
with current appendix G. Williams agrees and states that segmented
projects should allow phased completion of reports.
Williams states that Sec. 380.12(f)(2)(ii) discusses procedures if
landowners deny access to private property and
[[Page 26597]]
certain areas are not surveyed. In that event, the unsurveyed area must
be identified and supplemental surveys or evaluations conducted after
access is granted. INGAA believes that Sec. 157.8 provides the same
procedures for all Resource Reports, i.e., if a landowner denies
access, there is no requirement to supply the info at the time of
filing and the applicant may supplement reports when access is granted.
INGAA seeks clarification on this point.
Section 380.12(f)(2) states that SHPO and land management agency
comments must be filed with the initial application.
Subsection(f)(2)(i) states that any SHPO and land management agency
comments not available at the time of filing may be filed separately.
Enron suggests adding the phrase ``if available'' at the end of that
section.
National Fuel asks that Section IX.A of OPR's Guidelines for
Reporting on Cultural Resources Investigations be modified to eliminate
the need for at least 25 feet separation between a bore or directional
drill and the resource to qualify as avoiding the resource.
Williston Basin believes that the unanticipated discovery plan
required in Sec. 380.12(f)(1)(i) should only be provided if
consultation with the local SHPO indicates likelihood of a discovery.
Williston Basin states that this is consistent with the Historic
Preservation requirements of Sec. 800.11(a) of Title 36 of the Code of
Federal Regulations.
The Council states that Sec. 380.12(f)(2)(ii) indicates that a
certificate can be issued even though access has been denied to certain
project lands. It argues that the rule need to make an unequivocal
statement that issuance of the certificate will not preclude
consideration of a range of alternatives where access has been denied
to certain lands.
The Council also contends that there is no mechanism to carry the
initial consultations mentioned in Sec. 380.12(f)(3) through to
consideration of avoidance or mitigation.
Commission Response: The reference to the Guidelines for Reporting
on Cultural Resources Investigations does not create a requirement that
these procedures be used. They are simply a set of guidelines to assist
the applicant in preparing material for the Commission, the SHPO, and
others. The Commission believes that if the applicant follows these
guidelines the entities being consulted will likely have all they need
to complete their statutory obligations in a timely fashion. There will
certainly be situations where portions of the guidelines are not
applicable. However, what is ultimately required will be decided by the
Commission and the consulted entities.
INGAA's comment concerning previously disturbed areas is consistent
with the change to Sec. 157.206, which indicates that the standard
environmental conditions for blanket filings are not required if there
is no ground disturbance, among other things. If there is no ground
disturbance, the report might consist simply of the applicant's
statement that there will be no ground disturbance.
If the disturbance is similar to the previous ground disturbance,
the report might consist of photographs of the area and SHPO agreement
that the ground disturbance does not constitute a concern. However,
since it is difficult to encompass the many situations that could arise
dealing with prior disturbance and the many exceptions possible, the
Commission will still require that the applicant obtain the appropriate
SHPO's agreement in order to avoid the requirement for a more detailed
report. Of course, as with all the resource reports, the pipeline has
the option to explain the absence of material based on the nature of
the project. It will then be up to the staff to determine if the reason
is adequate.
Generally, segmented projects are not allowed under NEPA or the
National Historic Preservation Act (NHPA). There is either one project
or a group of independent, largely unrelated projects. The reason in
the case of NEPA is to keep other agencies from splitting a project
into several isolated parts so that the individual impacts will be
minimal for each part of a project but the aggregate impact of all the
parts might be significant. If the applicant can show that the filing
is for a group of individual projects, then it might be possible to
accept filings in stages. However, even in this case, it will generally
depend on the requested timing of the approval. It is the Commission's
experience that this is rarely acceptable. Of course, reports for the
areas for which access is denied will come in later.
Requiring survey reports to be filed with the application is
intended to ensure the speediest review possible.
Section 157.8 provides that a filing will not be rejected if
surveys or other information can not be obtained because access was
denied to the property. This applies to all of the information, not
just cultural resources. Section 380.12(f)(2) should read: ``* * *
written comments from SHPOs, THPOs, and land-management agencies, if
available, must be filed with the initial application.''
We will not change the requirement that a bore be at least 25 feet
from all portions of a site in order to qualify as an ``avoidance.''
There have been enough instances of directional drills or bores failing
to miss or otherwise adversely affecting cultural resources that this
distance represents the minimum we are willing to accept. This does not
mean a directional drill that is closer cannot be done, it simply means
that we want to retain the option of providing the Advisory Council on
Historic Preservation an opportunity to comment on the effects that
might result from a failed drill.
We agree with Williston Basin and will remove Sec. 380.12(f)(1)(i).
Section 380.12(f)(2) should begin: ``The Documentation of initial
cultural resource consultation, * * *''. In appendix A, the box for
Resource Report 4 should be modified by deleting the checklist item for
``Unanticipated Historic Properties and Remains.''
As to the Council's comment regarding issuing certificates even
though access has been denied to certain lands, we will change the end
of the first sentence in Sec. 380.12(f)(2)(ii) to read: ``* * *
supplemental surveys or evaluations shall be conducted after access is
granted.''
The Council also comments that there is no mechanism to carry the
initial consultations mentioned in Sec. 380.12(f)(3) through to
consideration of avoidance or mitigation. It misunderstands the intent
of the rule. The Commission wants an applicant to obtain a certain
level of information regarding cultural resources prior to filing the
application. Once the filing is made, we will direct the further
analysis and consultations as required on a case-by-case basis,
including consideration of avoidance and mitigation.
Geological Resources
New Sec. 380.12(h)(6), part of Resource Report 6, geological
resources, requires various information with respect to underground
storage facilities.
Comments: NGAA contends that this section requires certain
information which expands what is currently required to be filed. For
example, it refers to Sec. 380.12(h)(6)(i), which requires information
on how the applicant would control and monitor drilling activity of
others within the storage field and buffer zone, and
Sec. 380.12(h)(6)(ii), which requires information on how the applicant
would monitor potential effects of the operation of adjacent storage or
production facilities on the proposed facilities. INGAA states that
applicants have little control over information on the drilling
activities of other operators within a storage field, since adjacent
[[Page 26598]]
facilities information would generally be highly confidential.
Similarly, Enron states that the information required in these sections
is beyond the control of the storage operator. INGAA recommends that
this information be provided to the extent it is within the control of
the applicant.
Commission Response: We note that the requirement is to provide a
discussion of what steps the applicant would take to determine or
ensure the security of its facility from the actions of others. It does
not require any information about other producers or operators. We
believe this is necessary to ensure that safe operation of the
applicant's own facility.
Mitigation Measures
New Sec. 380.12(i)(5), which is part of Resource Report 7, Soils,
requires pipelines to describe proposed mitigation measures and compare
them with staff's Upland Erosion Control, Revegetation and Maintenance
Plan (Plan).
Comments: Enron and INGAA raise the same comments here as
previously discussed in Resource Report 2, Sec. 380.12(d)(2). They
state that the Commission should accept a general description of the
mitigation measures that will be employed and a schedule for providing
more site-specific mitigation measures.
National Fuel proposes that Section VII.3(g) of the Plan be
revised.31
---------------------------------------------------------------------------
\33\ See National Fuel's comments, at 7.
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Commission Response: The comments by INGAA and Enron track their
comments with respect to the WWCMP in Sec. 380.12(d)(2). Our response
is the same.
Land Use
New Sec. 380.12(j), Resource Report 8, sets out the requirements
for Land use, recreation and aesthetics.
Comments: Enron and INGAA are concerned with the requirement to
describe land use beyond the immediate adjacent property up to 0.25
mile from the project. They argue that the requirement should be
revised to describe lands beyond the immediately adjacent lands only
when they involve environmentally sensitive areas.
INGAA states that Sec. 380.12(j)(3) requires an applicant to
identify all planned development by milepost and the time frame for
construction. It states that current appendix G only requires listing
planned development, if known. INGAA and National Fuel request that the
regulation be clarified to require information only on planned
development on file with local planning boards or recorded county
records. They argue that it can be misleading to interview each
affected landowner about possible development plans that have not
progressed to the point of filing.
Enron requests that information on contract and pipe storage yards
in Sec. 380.12(j)(1) and planned residential and commercial business
development in Sec. 380.12(j)(3) be removed from the minimum checklist
as not generally available at the time an application is filed.
Enron and INGAA object to the requirement in Sec. 380.12(j)(10) to
describe ROW compensation. They argue that this requirement is not
currently required, and will have harmful effects. INGAA contends that
most ROW issues are resolved on a mutually agreeable basis between the
pipeline and landowner. Where agreement cannot be reached, compensation
is set in state or federal court based on local valuation. INGAA
contends that it is highly prejudicial for a pipeline to speculate on
property compensation values at the time an application is filed. Such
statements could make it more difficult to resolve ROW matters by
settlement. This requirement could jeopardize negotiations with other
landowners. INGAA recommends that this requirement be eliminated or
clarified to discuss the general process to acquire easements by
purchase or the exercise of eminent domain.
Duke Energy shares the same concern. It contends that compensation
plans could be stated in general terms since actual compensation is
site-specific. Duke Energy argues that the regulation should not
require a company to select a forum (state or federal court) for the
eminent domain process at such an early stage, nor should a detailed
description of the process be required. This is because it may be
unclear at time of filing if exercise of eminent domain will be
required.
The Council states that Sec. 380.12(j)(4) should specifically
reference and include ``traditional cultural properties.''
Commission Response: The intent of the land use Resource Report is
to describe land use adjacent to the ROW and to make sure the applicant
and the Commission are aware of important areas which, although not
crossed, might nonetheless be affected by the project. To clarify this
intent, we will make several changes to the proposed language. We will
change the second sentence in the introduction to Sec. 380.12(j) as
follows: ``* * * describe the existing uses of land on, and (where
specified) within 0.25 mile of, the proposed project * * *''. We will
add the specifications to paragraphs (3), (4), (6), and (8) as follows:
In (3): ``Describe planned development on land crossed or within 0.25
mile of proposed facilities, the time frame * * *;'' in (4): At the
end: ``* * * agencies or private preservation groups. Also identify if
any of these areas are located within 0.25 mile of any proposed
facility;'' in (6): ``Describe any areas crossed by or within 0.25 mile
of the proposed pipeline or plant and operational sites which are
included in, or are designated * * *;'' in (8): ``Describe the impact
the project will have on present uses of the affected area as
identified above, including * * *''
We accept INGAA's comment regarding planned development. The intent
was to obtain the same material currently included in Appendix G. We
will add a new sentence to the end of Sec. 380.12(j)(3) that will read:
``Planned development means development which is on file with the local
planning board or the county.'' The following words should be added
after the words ``time frame'' in the first sentence so it will read:
``* * * time frame (if available) for such development * * *''.
The applicant should provide its best estimate of what pipeyards
and other areas would be required with the application and bring it up
to date as better data becomes available. Since we are clarifying the
requirement for development information to make it clear that the
applicant need only check local and county records to determine whether
such development is planned, we will not remove this requirement from
the minimum filing requirements. The Commission needs this information
to make a responsible decision on the proposed facility location.
Duke Energy and INGAA believe that Sec. 380.12(j)(10) requires
information on the specific dollar amounts of landowner compensation
and that the requirement to provide this information is not currently
in appendix G. The last sentence of Sec. 380.12(j)(10) comes verbatim
from appendix G. However, it does not ask for and there is no intent to
have specific amounts of compensation provided. The applicant should
provide a discussion of what would normally be compensated, and the
process for determining the amount of compensation on a state-by-state-
basis.
The Council states that Sec. 380.12(j)(4) should specifically
reference and include ``traditional cultural properties.'' To the
extent this information is readily available to the public we will make
this addition.
[[Page 26599]]
However, since it is very likely that the information will not be
available because of tribal concerns, we prefer to address this in
Resource Report 4, where we have specified we expect privacy to be
maintained for resources that are sensitive. We will modify
Sec. 380.12(j)(4) to read: ``* * * or registered natural landmarks,
Native American religious sites and traditional cultural properties to
the extent they are known to the public at large, and reservations, * *
*.''
Air and Noise Quality
New Secs. 380.12(k)(2), (3) and (4), part of Resource Report 9, Air
and noise quality, require information regarding the noise impact of
compression and LNG facilities.
Comments: INGAA states that Sec. 380.12(k)(2)(ii) requires a noise
survey at the property line of the compressor, which is unnecessary and
not required in current appendix G. It contends that the noise level
restriction is only applicable to the nearest noise-sensitive area,
which is the area of concern. Thus, no noise survey at the property
line should be required. Enron agrees that this requirement should be
eliminated.
Section 380.12(k)(3) requires detailed calculations for emission
rates and the impact on air quality. INGAA is concerned that this
requirement is duplicative of work done in obtaining air permits from
the state and/or federal permitting agency. Such permits are not
finalized until specific compressor models are selected. In many cases,
all of the factors needed to obtain the necessary air permits are not
known until after a certificate is issued by the Commission. Enron and
INGAA requests that the Commission's current practice continue, which
allows pipelines, at the time of filing, to provide estimates for a
compressor unit's potential emissions of pollutants that may effect
ambient air quality.
Williams states that providing full load noise data may not always
be operationally feasible, and that the Commission should allow
flexibility to accommodate limitations.
Enron and INGAA are concerned that Sec. 380.12(k)(4)(i) does not
appear to accommodate noise calculations generated by a computer model,
such as AGA Sound. Compliance with this section would require pipelines
to duplicate a computer-generated process with a redundant set of
manual calculations. INGAA requests that the step-by-step supporting
calculations be eliminated and instead allow for the generation of
noise calculations using the latest available technologies.
Enron and INGAA both contend that Sec. 380.12(k)(4)(ii) requests
certain information, such as the manufacturers name and model number of
new compressor units, that should be removed from the minimum
checklist, since this information is not generally available at the
time the application is filed. They suggest that the minimum checklist
only require identification of a range of feasible units, since
pipelines generally do not request bids for units so far in advance of
construction. This section also requires pipelines to provide noise
data with and without noise attenuators. Since some manufacturers
provide this data and some do not, INGAA requests that the Commission
clarify that the applicant is only obligated to provide the information
available at the time of filing.
Enron raises the same concern about the 55dB(A) noise limit in
Sec. 380.12(k)(4)(v)(A) that it raised in Sec. 157.206(b)(5). It
requests that the Commission continue to apply the limit only to new or
modified units.
Commission Response: INGAA's comment claims incorrectly that the
requirement for a property line noise survey in Sec. 380.12(k)(2)(ii)
is unnecessary and not required in current appendix G. In fact this
requirement is a direct quote from the third sentence in section (9)(b)
of appendix G. The survey is needed to help in determining the
directionality of the noise emitted by the station as well as its
attenuation in the direction of the noise sensitive areas.
INGAA requests that Sec. 380.12(k)(3) be modified to allow
estimates of air pollutant emissions. This is, in fact, exactly what
the paragraph does. The first word of paragraph 3 is ``estimate.''
However, even if the data are estimates the calculations involved in
those estimates must be provided in detail so that the Commission can
follow how the estimates were derived.
The estimates are required for both existing (where appropriate)
and proposed units. The information for existing units is in the
existing permits for those units. With respect to the comment
pertaining to duplication of effort, as with many of the environmental
issues addressed by NEPA there are agencies which have specific
responsibilities under other statutes, but that does not reduce the
Commission's responsibility to know what the environmental impact of a
project will be. This need to know does not in any way usurp another
agency's jurisdiction. To the extent that the applicant has already
initiated whatever review process may be required at other agencies,
the Commission attempts to dovetail its analysis as a ``lead Federal
agency'' with the review of the cooperating agencies.
Williams is concerned that it may not be operationally feasible to
obtain full load data. If this is the case the applicant should provide
data taken as close to full load as possible and extrapolate to full
load. As with any material specified in the resource reports the
applicant should provide the best information available and indicate
the constraints it faced in attempting to provide what was required. If
that is not acceptable the staff will so inform the applicant.
INGAA is concerned that Sec. 380.12(k)(4)(i) may not allow computer
modeling and may require manual computations. This is not the case.
However, if a computer model is used the filing must specify the
program used and include the input data and all assumptions made in the
model. We will modify Sec. 380.12(k)(4)(i) to read: ``Include step-by-
step supporting calculations or identify the computer program used to
model the noise levels, the input and raw output data and all
assumptions made when running the model, far-field sound level data for
maximum facility operation, and the source of the data.''
INGAA claims that the applicant frequently does not have specific
information on the compressor units to be used for the project. We have
found that more and more applications do in fact have this information.
In fact, the generally long lead time required to order compressors
means that an applicant who is interested in obtaining quick approval
so its project can be placed in service quickly will have to have
ordered compressors, or at least decided on what it intends to order
prior to filing. Consequently, we will not change the requirement.
However, as with all of the resource report material the applicant may
give reasons why certain information is missing and provide a schedule
for its submittal and the staff will determine if the filing is still
acceptable.
As to the 55dB(A) noise level, the intent is to have the noise
limit apply to the new or modified compressor units. In order to
clarify this, we will modify Sec. 380.12(k)(4)(v)(A) to read: ``The
noise attributable to any new compressor station, compression added to
an existing station, or any modification, upgrade, or update of an
existing station must not exceed a day- night sound level
(Ldn) of 55dBA at any pre-existing noise-sensitive area
(such as schools, hospitals, or residences).
[[Page 26600]]
Alternatives
New Sec. 380.12(l), Resource Report 10, requires pipelines to
describe alternatives to projects and compare the environmental impacts
of such alternatives to those of the proposal.
Comments: INGAA and Williams object to the requirement in
Sec. 380.12(l)(3) that alternative route information be provided at the
same level of detail as the proposed route at the time of the
application. They want the Commission to clarify that generalized
information on alternative routes can be provided at the time of filing
while additional information is collected.
The Council states that the minimum filing requirements of Resource
Report 4 (Cultural Resources) and Resource Report 10 (Alternatives)
need to be coordinated.
Commission Response: The alternatives referred to in Sec. 380.12(l)
are alternatives the applicant considered in coming up with its
proposal. The alternatives in Sec. 380.12(l)(2) are not to be discussed
in the same detail as the filed location since they were rejected in
the initial screening. The applicant must, however, provide sufficient
discussion for the Commission to understand why the alternatives were
rejected. The alternatives in Sec. 380.12(l)(3) should be discussed in
more detail. Nevertheless, the only explicit requirement for material
comparable to the proposed route is the maps showing the locations. The
rest of the discussion does not require the same level of detail as
long as tables of comparative environmental data can be provided. These
tables should show the environmental reasons, if any, for not selecting
the alternative and therefore should concentrate on the environmental
features important to a comparison of the locations. The checklist
clearly indicates that the same level of detail is not required at the
time of filing.
As to the Council's request for coordination, none is needed. The
contents of resource report 10 do not necessarily assume detailed on
the ground survey work. The purpose is for the Commission to decide if
more detailed review of an alternative is required. The Commission does
expect that the applicant will have determined the proposed facility
locations based on its knowledge of the presence or absence of cultural
resources. In other words, the proposed route will already minimize the
number of cultural resources affected. Under these circumstances there
is no reason to provide the same level of coverage to alternative
routes.
If there are cultural resources that fall under the consideration
of section 106 that will still be affected by the proposed locations,
then the Commission will determine the need to address alternative
routes to avoid the effects. Avoidance is just another, albeit very
important, mitigation measure available for consideration.
Section 380.13 Compliance with the Endangered Species Act
New Secs. 380.13(b)(2)(i) and (iii) set forth the consultation
requirements for compliance with the Endangered Species Act.
Comments: Williams argues that the time frame for which the U.S.
Fish and Wildlife Service (FWS) has granted blanket clearances should
govern, rather than putting a one-year limitation on such clearances.
Interior states that Sec. 380.13(b)(2)(iii) should be modified to
read:
The consulted agency will provide a species and critical habitat
list or concur with the species list provided within 30 days of its
receipt of the initial request. In the event that the consulted
agency does not provide this information within this time period,
the project sponsor may notify the Director, OPR, and follow the
procedures in paragraph (c) of this section.
Commission Response: The reason the specifications in
Secs. 380.13(b)(2)(i) and (ii) use a one-year expiration for FWS
clearances is that the FWS regulations specify that informal
consultation must be reinitiated within a year if the project hasn't
started yet. The concern is that since new species are listed on a
fairly regular basis, a clearance issued more than a year in advance
may no longer be valid.
We agree with Interior's proposed change to Sec. 380.13(b)(2)(iii)
and will also clarify the intent of the last sentence by modifying the
section to read:
(iii) The consulted agency will provide a species and critical
habitat list or concur with the species list provided within 30 days
of its receipt of the initial request. In the event that the
consulted agency does not provide this information within this time
period, the project sponsor may notify the Director, OPR, and
continue with the remaining procedures of this section.
Section 380.13(b)(3)(ii)(B)
Comments: Interior requests that Sec. 380.13(b)(3)(ii)(B) be
modified to read:
``That the project is not likely to adversely affect a listed
species or critical habitat.''
Commission Response: It is not clear what the intent of this
comment is, since the NOPR did not propose a Sec. 380.13(b)(3)(ii)(B).
However, if Interior's intent was to remove the reference to a time
frame for response from the consulted agency because it is redundant
with the similar statement in Sec. 380.13(b)(2)(iii), we will accept
that comment. We will also modify Sec. 380.13(b)(3) to clarify the
effect of what the NOPR referred to as a ``finding of no impact.''
Section 380.13(b)(3) will read as follows:
(3) End of informal consultations. (i) At any time during the
informal consultations, the consulted agency may determine or
confirm: (A) That no listed or proposed species, or designated or
proposed critical habitat, occurs in the project area; or (B) that
the project is not likely to adversely affect a listed species or
critical habitat. (ii) If the consulted agency provides this
determination or confirmation then no further consultation is
required.
Informal Consultations
Comments: Interior states that Sec. 380.13(b)(5)(i) should be
modified to read:
If the consulted agency initially determines, pursuant to the
informal consultations, that a listed species or its designated
critical habitat may occur in the project area, the project sponsor
must continue informal consultations with the consulted agency to
determine if the proposed project may affect the species or
designated critical habitat.
Commission Response: We agree with Interior and will modify the
first sentence as suggested.
Formal Consultations
Comments: Interior states that Sec. 380.13(d)(3) should be modified
to read:
The Formal Consultation period concludes within 90 days of
initiation, and the final biological opinion will be delivered
within 45 days thereafter. The consultation can not be extended for
more than 60 days without the consent of the project sponsor (50 CFR
402.14(e)).
Commission Response: We believe that this modification does not
differ from the proposed wording of Secs. 380.13(d)(3) and (4),
therefore it will not be used.
Section 380.14 Compliance with the National Historic Preservation Act
New Sec. 380.14 concerns compliance with the National Historic
Preservation Act.
Comments: Duke Energy and INGAA state that the proposal requires
pipelines to consult with State Historic Preservation Officers (SHPOs).
They argue that if SHPOs issue blanket clearances for a certain time
period, as are often issued by the FWS and
[[Page 26601]]
National Marine Fisheries Service for compliance with the Endangered
Species Act, the rule should not require consultations. They contend
that this position is consistent with the proposal in
Sec. 380.13(b)(2).
Williams shares the same concern and proposes that
Sec. 380.14(a)(3) provide for blanket clearances. Williams believes
that five year clearances are appropriate in the context of cultural
resources when it may not be valid in the context of endangered
species. It states that the status of endangered species and their
critical habitat can change with some frequency, but cultural resources
are in-place and static.
The Council makes several comments specific to Sec. 380.14. It
claims that the proposed rule does not distinctly spell out the
Commission's nondelegable responsibility for decision-making under the
NHPA. It believes it is unclear if all reports listed in Sec. 380.14
and the guidance, including the Treatment Plan, are required at filing.
It also points out that Sec. 380.14 fails to reference the Council's
regulations at 36 CFR part 800. In line with its earlier comments
concerning involvement of Indian tribes, it states that Indian tribes
must be consulted whenever ``an undertaking may affect properties of
historic value to an Indian tribe on non-Indian lands.'' (36 CFR
800.1(c)(iii)). It suggests that terms of art such as ``undertaking''
should be defined. Finally, the Council asks the intent of
Sec. 380.14(d).
Commission Response: We do not currently, nor do we propose to set
any time limits on the acceptability of letters demonstrating
consultation with the SHPO unless the SHPO sets time limits. If the
SHPO has provided consultation comments for a category of undertakings,
the applicant may submit that letter as documentation of consultation.
We will look at the letter and make sure it applies to the type of
project proposed and that there are no circumstances which require
Native Americans or others to be consulted, or other material to be
filed.
We disagree with the Council that our responsibilities are not
properly identified. In the first sentence of section 380.14 the
regulation clearly states our responsibility to ``take into account the
effect of a proposed project on any historic property and to afford the
Advisory Council on Historic Preservation (Council) an opportunity to
comment on the undertaking.'' We go on to indicate that the project
sponsor will assist us in this endeavor. We believe this is adequate
recognition of our responsibilities under section 106.
We believe that the rule clearly identifies filing requirements in
at least two places. First, Appendix A, which contains the minimum
filing requirements, clearly states that ``Overview/Survey Reports''
are required. This is also explicitly stated at Sec. 380.12(f)(2).
Second, Sec. 380.12(f)(3) explicitly states that the Evaluation Report
and Treatment Plan must be filed before a final certificate is issued.
We will add specific reference to the Council regulations in
Sec. 380.14(a) to read:
``* * * obligations under NHPA section 106 and the implementing
regulations at 36 CFR part 800 by following the procedures at* * *''
We already have included Indian tribes in Sec. 380.14 (a) and
Sec. 380.14(d)--and not just for tribal lands, but as interested
parties.
``Undertaking'' is really the only term of art used in the rule
itself. All of the terms which may need definition are found in the
guidelines and are either defined there or are stated to be as defined
in 36 CFR part 800. We will replace the term ``undertaking'' in the
rule since it may be unclear and implies, incorrectly, that all
projects filed at the Commission are undertakings as defined in 36 CFR
800.2. We will modify Sec. 380.14(a) to read:
``* * * opportunity to comment projects if required under 36 CFR
part 800. The project sponsor,* * *''
The comment questioning the intent of Sec. 380.14(d) refers to
proposed Sec. 380.14(a)(4) and overlooks the fact that it lists the
Council as one of the parties to the kind of ``agreement document''
under consideration. There is no reason to refer to the Council's
comment when, in fact, such a document could very well incorporate the
Council's comments implicitly. If it didn't, we presume that the
Council would have made sure that getting such comments was explicitly
mentioned. We contemplated that the Council would be a signatory to
such an agreement.
Section 380.15 Siting and maintenance requirements.
New Sec. 380.15 reflects the facility siting guidelines currently
at Sec. 2.69.
Comments: INGAA contends that the Commission should continue to
treat these provisions as guidelines. It believes that a rigid
application of these provisions could limit the balancing necessary to
properly site a pipeline facility.
The Council states that in Sec. 380.15 and elsewhere, wording
should be revised so that the efforts to avoid as well as minimize
effects to historic properties can be considered.
Commission Response: INGAA is concerned Sec. 380.15 now includes
the word ``requirements'' in the title and therefore it might be more
restrictive. The title has changed but the wording is basically the
same. The current regulations at Sec. 157.14(a)(6-c) requires that the
applicant swear that these guidelines have been adopted and will be
issued to the appropriate personnel and that the applicant provide a
description of how they will be implemented. The new section avoids the
need for a separate sworn exhibit, but adds no different obligation on
the applicant. In the future, as now, the applicant is expected to use
the guidelines. In addition, the wording continues to specify that the
guidelines are to be used as practicable. Of course, the applicant can
be asked to explain its failure to follow the guidelines and justify a
decision that some part of them is not practical.
We agree with the Council that avoidance of historic properties,
where practical, is extremely important. That is why the proposed rule
included this wording at Sec. 380.15(d)(2). However, in response to
this comment we will add similar wording at the lead-in to this section
at Sec. 380.15(a). We will change Sec. 380.15(a) to read
``* * * undertaken in a way that avoids or minimizes effects on
scenic,* * *''.
On further review, we note that old Sec. 2.69(a)(3)(vi) was
inadvertently left out of Sec. 380.15. We will include a slightly
modified version at new Sec. 380.15(f)(5).
G. Part 385--Rules of Practice and Procedure
Part 385 sets forth the Commission's Rules of Practice and
Procedure. The Commission is proposing to revise certain of the
regulations under subpart T relating to the rejection of filings and to
electronic filing of applications.
Subpart T--Formal Requirements for Filings in Proceedings Before the
Commission
Section 385.2001--Filings (Rule 2001)
Consistent with our proposal to reject patently deficient filings
under Sec. 157.8 and Sec. 157.205(d), the Commission proposes to modify
Sec. 385.2001(b)(3), dealing with rejection of filings, to provide for
a letter of rejection indicating the reasons for rejection.
IV. Information Collection Statement
The Office of Management of Budget's (OMB) regulations in 5 CFR
1320.11 require that it approve certain reporting and record keeping
requirements (collections of information) imposed by an agency. Upon
approval of a
[[Page 26602]]
collection of information, OMB shall assign an OMB control number and
an expiration date. Respondents subject to the filing requirements of
this Final Rule shall not be penalized for failing to respond to these
collections of information unless the collections of information
display valid OMB control numbers.
The collections of information related to the subject of this Final
Rule fall under FERC-537, Gas Pipeline Certificates: Construction,
Acquisition, and Abandonment (OMB Control No. 1902-00060); FERC-539,
Gas Pipelines Certificate: Import/Export Related (OMB Control No. 1902-
0062); and FERC-577, Environmental Impact Statement (Pipeline
Certificate) (OMB Control No. 1902-0128).
Under this Final Rule, the overall burden of filing will be reduced
based on the elimination of certain filings by the rule. Further, the
burden will be reduced by the elimination of the requirement to report
all but cost information for prior notice activity in the annual
report. On the whole, the Commission estimates that the revised
reporting schedule will reduce the existing reporting burden by a total
of 8,284 hours. Therefore, the Commission believes the overall burden
on the industry will be lessened over time by the changes in the Final
Rule.
The burden estimates for complying with this proposed rule are as
follows:
Public Reporting Burden
[Estimated Annual Burden]
----------------------------------------------------------------------------------------------------------------
No. of No. of Hours of Total annual
Data collection respondents responses Response hours
----------------------------------------------------------------------------------------------------------------
FERC-537....................................... 50 11.2 245.82 137,660
FERC-539....................................... 12 1 218 2,616
FERC-577....................................... 70 16.8 154 181,720
----------------------------------------------------------------------------------------------------------------
The total annual hours for collection (including record keeping) is
estimated to be 321,996.
Information Collection costs: The average annualized cost for all
respondents is projected to be the following:
----------------------------------------------------------------------------------------------------------------
Annualized
Annualized costs Total
Data collection capital/sart- (operations & annualized
up costs maintenance) costs
----------------------------------------------------------------------------------------------------------------
FERC-537........................................................ $30,000 $7,189,717 $7,219,717
FERC-539........................................................ 7,200 136,639 143,829
FERC-577........................................................ 0 9,494,751 9,494,751
----------------------------------------------------------------------------------------------------------------
The total annualized costs for collection is estimated to be
$3,313,844.
None of the comments received in response to the NOPR specifically
addressed the reporting burden or cost estimates. Further, we note
that, as required under OMB's regulations, the Commission submitted the
NOPR to OMB for review. OMB took no action on the NOPR. However, in
response, OMB stated that the Commission should resubmit its
information request when it takes final action.
Interested persons may obtain information on the reporting
requirements by contacting the Federal Energy Regulatory Commission,
888 First Street, NE, Washington, DC 20426 [Attention: Michael Miller,
Office of Chief Information Officer, Phone: (202) 208-1415, fax: (202)
208-2425, e-mail [email protected]] or the Office of Management
and Budget, Office of Information and Regulatory Affairs, Attention:
Desk Officer for the Federal Energy Regulatory Commission, 725 17th
Street, NW, Washington, DC, 20503, Phone: 202-395-3087, fax: 202 395-
7285.
V. Environmental Analysis
The Commission is required to prepare an Environmental Assessment
or an Environmental Impact Statement for any action that may have a
significant adverse effect on the human environment.34 The
Commission has categorically excluded certain actions from these
requirements as not having a significant effect on the human
environment.35 The actions taken here fall within
categorical exclusions in the Commission's regulations for rules that
are clarifying, corrective, or procedural, for information gathering,
analysis, and dissemination, and for sales, exchange, and
transportation of natural gas that requires no construction of
facilities.36 Therefore, an environmental assessment is
unnecessary and has not been prepared in this rulemaking.
---------------------------------------------------------------------------
\34\ Order No. 486, Regulations Implementing the National
Environmental Policy Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. &
Regs. Preambles 1986-1990 para.30,783 (1987).
\35\ 18 CFR 380.4.
\36\ See 18 CFR 380.4(a)(2)(ii), 380.4(a)(5), 380.4(a)(27).
---------------------------------------------------------------------------
VI. Regulatory Flexibility Act Certification
The Regulatory Flexibility Act of 1980 (RFA) 37
generally requires a description and analysis of final rules that will
have significant economic impact on a substantial number of small
entities. The regulations adopted here impose requirements only on
interstate pipelines, which are not small businesses. Accordingly,
pursuant to section 605(b) of the RFA, the Commission hereby certifies
that the regulations adopted herein will not have a significant adverse
impact on a substantial number of small entities.
---------------------------------------------------------------------------
\37\ 5 U.S.C. 601-612.
---------------------------------------------------------------------------
VII. Effective Date
These regulations become effective June 14, 1999. The Commission
has concluded, with the concurrence of the Administrator of the Office
of Information and Regulatory Affairs of OMB, that this rule is not a
``major rule'' as defined in section 251 of the Small Business
Regulatory Enforcement Fairness Act of 1996.
[[Page 26603]]
List of Subjects
18 CFR Part 2
Administrative practice and procedure, Electric power, Natural gas,
Pipelines, Reporting and recordkeeping requirements.
18 CFR Part 153
Exports, Imports, Natural gas, Reporting and recordkeeping
requirements.
18 CFR Part 157
Administrative practice and procedure, Natural gas, Reporting and
recordkeeping requirements.
18 CFR Part 284
Continental shelf, Incorporating by reference, Natural gas,
Reporting and recordkeeping requirements.
18 CFR Part 375
Authority delegations (Government agencies), Seals and insignia,
Sunshine Act.
18 CFR Part 380
Environmental impact statements, Reporting and recordkeeping
requirements.
18 CFR Part 385
Administrative practice and procedure, Electric power, Penalties,
Pipelines, Reporting and recordkeeping.
By the Commission.
David P. Boergers,
Secretary.
In consideration of the foregoing, the Commission proposes to amend
parts 2, 153, 157, 284, 375, 380, 381 and 385, Chapter I, Title 18,
Code of Federal Regulations, as follows:
PART 2--GENERAL POLICY AND INTERPRETATIONS
1. The authority citation for part 2 continues to read as follows:
Authority: 5 U.S.C. 601; 15 U.S.C. 717-717w, 3301-3432; 16
U.S.C. 792-825y, 2601-2645; 42 U.S.C. 4321-4361, 7101-7352.
Sec. 2.1 [Amended]
2. In Sec. 2.1, paragraph (a)(1)(viii)(A)-(D) are removed.
3. In Sec. 2.55, paragraph (a) is revised; (b)(1)(ii) is revised;
(b)(4)(i) is removed and (b)(4)(ii) redesignated as (b)(4); and
paragraph (d) is removed and reserved, to read as follows:
Sec. 2.55 Definition of terms used in section 7(c).
* * * * *
(a) Auxiliary installations. (1) Installations (excluding gas
compressors) which are merely auxiliary or appurtenant to an authorized
or proposed transmission pipeline system and which are installations
only for the purpose of obtaining more efficient or more economical
operation of the authorized or proposed transmission facilities, such
as: Valves; drips; pig launchers/receivers; yard and station piping;
cathodic protection equipment; gas cleaning, cooling and dehydration
equipment; residual refining equipment; water pumping, treatment and
cooling equipment; electrical and communication equipment; and
buildings.
(2) Advance notification. If auxiliary facilities are to be
installed:
(i) On existing transmission facilities, then no notification is
required;
(ii) On, or at the same time as, certificated facilities which are
not yet in service, then a description of the auxiliary facilities and
their locations must be provided to the Commission at least 30 days in
advance of their installation; or
(iii) On and at the same time as facilities that are proposed, then
the auxiliary facilities must be described in the environmental report
specified in Sec. 380.12 or in a supplemental filing while the
application is pending.
(b) * * *
(1) * * *
(ii) The replacement facilities will have a substantially
equivalent designed delivery capacity, will be located in the same
right-of-way or on the same site as the facilities being replaced, and
will be constructed using the temporary work space used to construct
the original facility (See appendix A to this part 2 for guidelines on
what is considered to be the appropriate work area in this context);
* * * * *
(d) [Reserved]
Sec. 2.69 [Removed]
4. Sec. 2.69 is removed and reserved.
Sec. 2.102 [Removed]
5. Section 2.102 is removed and reserved.
6. New Appendix A to part 2 is added to read as follows:
Appendix A to Part 2--Guidance for Determining the Acceptable
Construction Area for Replacements
These guidelines shall be followed to determine what area may be
used to construct the replacement facility. Specifically, they
address what areas, in addition to the permanent right-of-way, may
be used.
Pipeline replacement must be within the existing right-of-way as
specified by Sec. 2.55(b)(1)(ii). Construction activities for the
replacement can extend outside the current permanent right-of-way if
they are within the temporary and permanent right-of-way and
associated work spaces used in the original installation.
If documentation is not available on the location and width of
the temporary and permanent rights-of-way and associated work space
that was used to construct the original facility, the company may
use the following guidance in replacing its facility, provided the
appropriate easements have been obtained:
a. Construction should be limited to no more than a 75-foot-wide
right-of-way including the existing permanent right-of-way for large
diameter pipeline (pipe greater than 12 inches in diameter) to carry
out routine construction. Pipeline 12 inches in diameter and smaller
should use no more than a 50-foot-wide right-of-way.
b. The temporary right-of-way (working side) should be on the
same side that was used in constructing the original pipeline.
c. A reasonable amount of additional temporary work space on
both sides of roads and interstate highways, railroads, and
significant stream crossings and in side-slope areas is allowed. The
size should be dependent upon site-specific conditions. Typical work
spaces are:
------------------------------------------------------------------------
Item Typical extra area (width/length)
------------------------------------------------------------------------
Two lane road (bored)............... 25-50 by 100 feet.
Four lane road (bored).............. 50 by 100 feet.
Major river (wet cut)............... 100 by 200 feet.
Intermediate stream (wet cut)....... 50 by 100 feet.
Single railroad track............... 25-50 by 100 feet.
------------------------------------------------------------------------
d. The replacement facility must be located within the permanent
right-of-way or, in the case of nonlinear facilities, the cleared
building site. In the case of pipelines this is assumed to be 50-
feet-wide and centered over the pipeline unless otherwise legally
specified.
However, use of the above guidelines for work space size is
constrained by the physical evidence in the area. Areas obviously not
cleared during the original construction, as evidenced by stands of
mature trees, structures, or other features that exceed the age of the
facility being replaced, should not be used for construction of the
replacement facility.
If these guidelines cannot be met, the company should consult with
the Commission's staff to determine if the exemption afforded by
Sec. 2.55 may be used. If the exemption may not be used, construction
authorization must be obtained pursuant to another regulation under the
Natural Gas Act.
PART 153--APPLICATIONS FOR AUTHORIZATION TO CONSTRUCT, OPERATE, OR
MODIFY FACILITIES FOR THE EXPORT OR IMPORT OF NATURAL GAS
7. The authority citation for part 153 continues to read as
follows:
[[Page 26604]]
Authority: 15 U.S.C. 717b, 717o; E.O. 10485, 3 CFR, 1949-1953
Comp., p. 970, as amended by E.O. 12038, 3 CFR, 1978 Comp., p. 136,
DOE Delegation Order No. 0204-112, 49 FR 6684 (February 22, 1984).
8. In Sec. 153.8, paragraph (a)(7) is revised to read as follows:
Sec. 153.8 Required exhibits.
(a) * * *
(7) Exhibit F. (i) An environmental report as specified in
Sec. 380.3 and Sec. 380.12 of this chapter. Applicant must submit all
appropriate revisions to Exhibit F whenever route or site changes are
filed. These revisions should identify the specific differences
resulting from the route or site changes, and not just provide revised
totals for the resources affected; and
* * * * *
9. In Sec. 153.21, paragraph (b) is revised to read as follows:
Sec. 153.21 Conformity with requirements.
* * * * *
(b) Rejection of applications. If an application patently fails to
comply with applicable statutory requirements or with applicable
Commission rules, regulations, and orders for which a waiver has not
been granted, the Director of the Office of Pipeline Regulation may
reject the application within 10 days of filing as provided by
Sec. 385.2001(b) of this chapter. This rejection is without prejudice
to an applicant's refiling a complete application. However, an
application will not be rejected solely on the basis of: Environmental
reports that are incomplete because the company has not been granted
access by the affected landowner(s) to perform required surveys, or
environmental reports that are incomplete, but where the minimum
checklist requirements of part 380, appendix A of this chapter have
been met. An application that relates to an operation, service, or
construction concerning which a prior application has been filed and
rejected, shall be docketed as a new application. Such new application
shall state the docket number of the prior rejected application.
PART 157--APPLICATIONS FOR CERTIFICATES OF PUBLIC CONVENIENCE AND
NECESSITY AND FOR ORDERS PERMITTING AND APPROVING ABANDONMENT UNDER
SECTION 7 OF THE NATURAL GAS ACT
10-11. The authority citation for Part 157 continues to read as
follows:
Authority: 15 U.S.C. 717-717W, 3301-3432; 42 U.S.C. 7101- 7352.
12. In Sec. 157.6, paragraphs(a) is revised; the heading of
paragraph (b) is revised; a new sentence is added to paragraph (b)(7)
and a new paragraph (b)(8) is added to read as follows:
Sec. 157.6 Applications; general requirements.
(a) Applicable rules--(1) Submission required to be furnished by
applicant under this subpart. Applications, amendments thereto, and all
exhibits and other submissions required to be furnished by an applicant
to the Commission under this subpart must be submitted in an original
and 7 conformed copies. To the extent that data required under this
subpart has been provided to the Commission, this data need not be
duplicated. The applicant must, however, include a statement
identifying the forms and records containing the required information
and when that form or record was submitted.
(2) The following must be submitted in electronic format as
prescribed by the Commission:
(i) Applications filed under this part 157 and all attached
exhibits;
(ii) Applications covering acquisitions and all attached exhibits;
(iii) Applications for temporary certificates and all attached
exhibits;
(iv) Applications to abandon facilities or services and all
attached exhibits;
(v) The progress reports required under Sec. 157.20(c) and (d);
(vi) Applications submitted under subpart E of this part and all
attached exhibits;
(vii) Applications submitted under subpart F of this part and all
attached exhibits;
(viii) Requests for authorization under the notice procedures
established in Sec. 157.205 and all attached exhibits;
(ix) The annual report required by Sec. 157.207;
(x) The report required under Sec. 157.214 when storage capacity is
increased;
(xi) Amendments to any of the foregoing.
(3) All filings must be signed in compliance with the following.
(i) The signature on a filing constitutes a certification that: The
signer has read the filing signed and knows the contents of the paper
copies and electronic filing; the paper copies contain the same
information as contained in the electronic filing; the contents as
stated in the copies and in the electronic filing are true to the best
knowledge and belief of the signer; and the signer possesses full power
and authority to sign the filing.
(ii) A filing must be signed by one of the following:
(A) The person on behalf of whom the filing is made;
(B) An officer, agent, or employee of the governmental authority,
agency, or instrumentality on behalf of which the filing is made; or,
(C) A representative qualified to practice before the Commission
under Sec. 385.2101 of this chapter who possesses authority to sign.
(4) Suitable means of electronic transmission or electronic media
suitable for Commission filings are listed in the instructions for each
form and filing. Lists of suitable electronic media are available upon
request from the Commission. The formats for the electronic filing and
paper copy can be obtained at the Federal Energy Regulatory Commission,
Public Information and Reference Branch, 888 First Street, NE.,
Washington, DC 20426.
(5) Other requirements. Applications under section 7 of the Natural
Gas Act must conform to the requirements of Secs. 157.5 through 157.14.
Amendments to or withdrawals of applications must conform to the
requirements of Secs. 385.213 and 385.214 of this chapter. If the
application involves an acquisition of facilities, it must conform to
the additional requirements prescribed in Secs. 157.15 and 157.16. If
the application involves an abandonment of facilities or service, it
must conform to the additional requirements prescribed in Sec. 157.18.
(b) General content of application. * * *
(7) * * * The form of notice shall also include the name, address,
and telephone number of an authorized contact person.
(8) For applications to construct new facilities, the complete
information necessary for the Commission to make an upfront
determination on the rate treatment of the proposed project in
accordance with the Statement of Policy in Docket No. PL94-4-000,
unless the applicant propose to charge incremental rates that are at or
above the effective maximum part 284 rate. The Policy Statement can be
found at 71 FERC para.61,241 (1995). Such information should include,
but is not limited to the following:
(i) Documentation specifically showing that an expansion project
will increase system or operational reliability, or provide other
financial benefits;
(ii) Detailed cost-of-service data supporting the cost of the
expansion project, a detailed study showing the revenue responsibility
for each firm rate schedule under the pipeline's currently effective
rate design and under the pipeline's proposed rolled-in rate
[[Page 26605]]
design, a detailed rate impact analysis by rate schedule (including by
zone, if applicable), and an analysis reflecting the impact of the fuel
usage resulting from the proposed expansion project (including by zone,
if applicable).
* * * * *
13. Sec. 157.8 is revised to read as follows:
Sec. 157.8 Acceptance for filing or rejection of applications.
Applications will be docketed when received and the applicant so
advised. If an application patently fails to comply with applicable
statutory requirements or with applicable Commission rules,
regulations, and orders for which a waiver has not been granted, the
Director of the Office of Pipeline Regulation may reject the
application within 10 days of filing as provided by Sec. 385.2001(b) of
this chapter. This rejection is without prejudice to an applicant's
refiling a complete application. However, an application will not be
rejected solely on the basis of: Environmental reports that are
incomplete because the company has not been granted access by the
affected landowner(s) to perform required surveys, or Environmental
reports that are incomplete, but where the minimum checklist
requirements of part 380, appendix A of this chapter have been met. An
application which relates to an operation, sale, service, construction,
extension, acquisition, or abandonment concerning which a prior
application has been filed and rejected, shall be docketed as a new
application. Such new application shall state the docket number of the
prior rejected application.
14. In Sec. 157.9, the first sentence is revised to read as
follows:
Sec. 157.9 Notice of application.
Notice of each application filed, except when rejected in
accordance with Sec. 157.8, will be issued within 10 days of filing,
and subsequently will be published in the Federal Register and copies
of such notice mailed to States affected thereby. * * *
15. Section 157.10 is revised to read as follows:
Sec. 157.10 Interventions and protests.
Notices of applications, as provided by Sec. 157.9, will fix the
time within which any person desiring to participate in the proceeding
may file a petition to intervene, and within which any interested
regulatory agency, as provided by Sec. 385.214 of this chapter,
desiring to intervene may file its notice of intervention. Any person
filing a petition to intervene or notice of intervention shall state
specifically whether he seeks formal hearing on the application. Any
person may file to intervene on environmental grounds based on the
draft environmental impact statement as stated at Sec. 380.10(a)(1)(i)
of this chapter. In accordance with that section, such intervention
will be deemed timely as long as it is filed within the comment period
for the draft environmental impact statement. Failure to make timely
filing will constitute grounds for denial of participation in the
absence of extraordinary circumstances or good cause shown. A copy of
each application, supplement and amendment thereto, including exhibits
required by Secs. 157.14, 157.16, and 157.18, shall upon request be
promptly supplied by the applicant to anyone who has filed a petition
for leave to intervene or given notice of intervention. However, an
applicant is not required to serve voluminous or difficult to reproduce
material, such as copies of environmental information, to all parties,
unless such material is specifically requested. Complete copies of the
application must be available in each county in the project area,
either in paper or electronic format, within three business days of
filing an application. Within five business days of receiving a request
for a complete copy from any party, the applicant must serve a full
copy of any filing on the requesting party. Pipelines must keep all
voluminous material on file with the Commission and make such
information available for inspection at buildings with public access
and with evening and weekend business hours, such as libraries located
in each county in the project area. Protests may be filed in accordance
with Sec. 385.211 of this chapter within the time permitted by any
person who does not seek to participate in the proceeding.
16. In Sec. 157.14, paragraph (a) is amended to remove the words
``On or after October 31, 1989, exhibits'' and the word ``Exhibits'' is
added in its place; paragraph (a)(6-a) is revised; paragraph (a)(6-b),
(a)(6-c) and (a)(6-d) are removed; paragraph (a)(12) is removed and
reserved; paragraphs (a)(14)(i)-(vi) are revised; and paragraphs
(a)(14) (vii)-(xiii) are removed, all to read as follows:
Sec. 157.14 Exhibits.
(a) * * *
(6-a) Exhibit F-I, Environmental Report. An environmental report as
specified in Secs. 380.3 and 380.12 of this chapter. Applicant must
submit all appropriate revisions to Exhibit F-I whenever route or site
changes are filed. These revisions should identify the locations by
mile post and describe all other specific differences resulting from
the route or site changes, and should not simply provide revised totals
for the resources affected.
* * * * *
(12) [Reserved]
* * * * *
(14) * * *
(i) A description of the class (e.g., commercial paper, long-term
debt, preferred stock) and cost rates for securities expected to be
issued with construction period and post- operational sources of
financing separately identified.
(ii) Statement of anticipated cash flow, including provision during
the period of construction and the first 3 full years of operation of
proposed facilities for interest requirements, dividends, and capital
requirements.
(iii) A balance sheet and income statement (12 months) of most
recent data available.
(iv) Comparative pro forma balance sheets and income statements for
the period of construction and each of the first 3 full years of
operation, giving effect to the proposed construction and proposed
financing of the project.
(v) Any additional data and information upon which applicant
proposes to rely in showing the adequacy and availability of resources
for financing its proposed project.
(vi) In instances for which principal operations of the company
have not commenced or where proposed rates for services are developed
on an incremental basis, a brief statement explaining how the applicant
will determine the actual allowance for funds used during construction
(AFUDC) rate, or if a rate is not to be used, how the applicant will
determine the actual amount of AFUDC to be capitalized as a component
of construction cost, and why the method is appropriate under the
circumstances.
* * * * *
17. In Sec. 157.16, paragraph (c)(1) is revised to read as follows:
Sec. 157.16 Exhibits relating to acquisitions.
* * * * *
(c) * * *
(1) The amounts recorded upon the books of the vendor, as being
applicable to the facilities to be acquired, and the related
depreciation, depletion, and amortization reserves. Include a brief
statement explaining the basis or methods used to derive the related
depreciation, depletion and amortization reserves.
* * * * *
[[Page 26606]]
Sec. 157.17 [Amended]
18. In Sec. 157.17, the words ``Before October 31, 1989, and
thereafter whenever'' are removed from paragraph (a) and the word
``Whenever'' is added in their place; and the words ``On or after
October 31, 1989, the'' are removed from paragraph (b) and the word
``The'' is added in their place.
19. In Sec. 157.18, new sentences are added between the first and
second sentence in the introductory text and paragraph (f)(2); and the
first sentence in paragraph (f)(3) is revised to read as follows:
Sec. 157.18 Applications to abandon facilities or service; exhibits.
* * * Any application for an abandonment that is not excluded by
Sec. 380.4(a)(28) or (29), must include an environmental report as
specified by Sec. 380.3(c)(2). * * *
* * * * *
(f) * * *
(2) * * * Include a brief statement explaining the basis or methods
used to derive the accumulated depreciation related to the property to
be disposed of. * * *
(3) State the amount of accumulated deferred income taxes
attributable to the property to be abandoned and the tax basis of the
property. * * *
* * * * *
20. In Sec. 157.20, paragraph (b) is revised; the phrases ``, until
October 13, 1989,'' and `` and thereafter,'' are removed from
paragraph, (c) introductory text, and paragraph (c)(2) is removed;
paragraphs (c)(3) and (c)(4) are redesignated as (c)(2) and (c)(3); the
phrases ``, before October 13, 1989,'' and ``and thereafter'' are
removed from paragraph (d), introductory text and paragraph (d)(1) is
removed; paragraph (d)(2) and (d)(3) are redesignated as (d)(1) and
(d)(2); redesignated paragraph (d)(2) is revised; paragraph (f) is
removed; paragraph (g) is redesignated as (f) to read as follows:
Sec. 157.20 General conditions applicable to certificates.
* * * * *
(b) Any authorized construction, extension, or acquisition shall be
completed and made available for service by applicant and any
authorized operation, service, or sale shall be available for regular
performance by applicant within (period of time to be specified by the
Commission in each order) from the issue date of the Commission's order
issuing the certificate. Applicant shall notify the Commission in
writing no later than 10 days after expiration of this time period that
the end-user/shipper is unable to meet the imposed timetable to
commence service.
* * * * *
(d) * * *
(2) within 10 days after authorized facilities have been
constructed and within 10 days after such facilities have been placed
in service or any authorized operation, sale, or service has commenced,
notice of the date of such completion, placement, and commencement, and
* * * * *
Sec. 157.21 [Removed]
21. Section 157.21 is removed and reserved.
22. In Sec. 157.102, the last sentence in paragraph (a)(1) is
removed; paragraph (b)(1)(v) is revised to read as follows:
Sec. 157.102 Contents of application and other pleadings.
* * * * *
(b) * * *
(1) * * *
(v) An environmental report as specified in Sec. 380.3 and
Sec. 380.12 of this chapter. Applicant must submit all appropriate
revisions to the environmental report whenever route or site changes
are filed. These revisions must identify and describe the specific
differences resulting from the route or site changes. Revised totals
for the resources affected will not be sufficient; and
* * * * *
Sec. 157.103 [Amended]
23. In Sec. 157.103(j), the words ``and Producer'' are removed from
the reference to the ``Office of Pipeline and Producer Regulation.''
Sec. 157.201 [Amended]
24. In Sec. 157.201(a) the words ``sales arrangements'' are
removed.
25. In Sec. 157.202, paragraphs (b)(2)(i) and (ii)(A), (B), (D),
(E), and (F), and paragraphs (b)(4), (5), (6), (7), (10) and (12) are
revised; and (b)(13)-(14) are removed to read as follows:
Sec. 157.202 Definitions.
* * * * *
(b) * * *
(2)(i) Eligible facility means, except as provided in paragraph
(b)(2)(ii) of this section, any facility subject to the Natural Gas Act
jurisdiction of the Commission that is necessary to provide service
within existing certificated levels. Eligible facility also includes
any gas supply facility or any facility, including receipt points,
needed by the certificate holder to receive gas into its system for
further transport or storage, and interconnecting points between
transporters that transport natural gas under Part 284 of this chapter.
Further, eligible facility includes main line, lateral, and compressor
replacements that do not qualify under Sec. 2.55(b) of this chapter
because they will result in an incidental increase in the capacity of
main line facilities, or because they will not satisfy the location or
work space requirements of Sec. 2.55(b). Replacements must be done for
sound engineering purposes. Replacements for the primary purpose of
creating additional main line capacity are not eligible facilities.
(ii) * * *
(A) A main line of a transmission system, except replacement
facilities covered under Sec. 157.202(b)(2)(i).
(B) An extension of a main line, except replacement facilities
covered under Sec. 157.202(b)(2)(i).
* * * * *
(D) A facility required to test, develop or utilize an underground
storage field or that alters the certificated capacity, deliverability,
or storage boundary, or a facility required to store gas above ground
in either a gaseous or liquified state, or a facility used to receive
gas from plants manufacturing synthetic gas or from plants gasifying
liquefied natural gas.
(E) Delivery points under Sec. 157.211.
(F) Temporary compression under Sec. 157.209.
* * * * *
(3) * * *
(4) Temporary compression means compressor facilities installed and
operated at existing compressor locations for the limited purpose of
temporarily replacing existing permanent compressor facilities that are
undergoing maintenance or repair or that are pending permanent
replacement.
(5) Main line means the principal transmission facilities of a
pipeline system extending from supply areas to market areas and does
not include small diameter supply or delivery laterals or gathering
lines.
(6) Miscellaneous rearrangement of any facility means any
rearrangement of a facility that does not result in any change of
service rendered by means of the facilities involved, including changes
in existing field operations or relocation of existing facilities:
(i) On the same property;
(ii) When required by highway construction, dam construction, or
the expansion or change of course of rivers, streams or creeks; or
(iii) To respond to other natural forces beyond the certificate
holder's control when necessary to ensure safety or maintain the
operational integrity of the certificate holder's facilities.
[[Page 26607]]
(7) Project means a unit of improvement or construction that is
used and useful upon completion.
* * * * *
(10) Delivery point means a tap and/or metering and appurtenant
facilities, such as heaters, minor gas conditioning, treatment,
odorization, and similar equipment, necessary to enable the certificate
holder to deliver gas to any party.
* * * * *
(12) Interconnecting point means only the interconnecting
facilities such as the tap, metering, M&R facilities and minor related
piping.
* * * * *
Sec. 157.203 [Amended]
26. In Sec. 157.203, paragraph(b) is amended to change the
reference from ``Sec. 157.211(a)'' to ``Sec. 157.211(a)(1),'' remove
the references to ``Sec. 157.213(a)'' and ``Sec. 157.217'' and to add
the reference to ``Sec. 157.209(a)'' in their place. Paragraph (c) is
amended to remove the references to ``Sec. 157.211, ``Sec. 157.211(b)''
and ``Sec. 157.212, Sec. 157.213(b)'' and to add the reference
``Sec. 157.211(a)(2)'' in their place.
Sec. 157.204 [Amended]
27. In Sec. 157.204, paragraph (d)(2) is removed; paragraph (d)(3)
is redesignated as d(2); and paragraphs (d)(3), (4), and (5) and
paragraph (e) are removed.
28. In Sec. 157.205, paragraphs (a), introductory text, and (b),
introductory text, are revised; paragraph (c) is removed; paragraphs
(d)--(i) are redesignated as (c)--(h); in paragraph(a)(2) add the words
``or dismissed'' after the word ``withdrawn''; a sentence is added at
the end of paragraph (b)(5); in paragraph (b)(6) the reference to
``paragraph (d)'' is changed to ``paragraph (c)''; redesignated
paragraph (c) is revised; in redesignated paragraph (d) the first
sentence is revised; in redesignated paragraph (f) the words ``and
Producer'' are removed from the reference to the ``Director of Pipeline
and Producer Regulation''; the form in redesignated paragraph (e)(2) is
revised; in redesignated paragraph (f) add the words ``or dismissed''
after the words ``is not withdrawn''; and in redesignated paragraph (g)
the heading is revised, the words ``and staff'' are removed and the
word ``and'' is added between ``certificate holder'' and ``protestor'',
and sentences are added at the end of the paragraph to read as follows:
Sec. 157.205 Notice Procedure.
(a) Applicability. No activity described in Secs. 157.208(b),
157.211(a)(2), 157.214 or 157.216(b) is authorized by a blanket
certificate granted under this subpart, unless, prior to undertaking
such activity:
* * * * *
(b) Contents. For any activity subject to the requirements of this
section, the certificate holder must file with the Secretary of the
Commission an original and seven copies, as prescribed in
Secs. 157.6(a) and 385.2011 of this chapter, a request for
authorization under the notice procedures of this section that
contains:
* * * * *
(5) * * * The form of notice shall also include the name, address,
and telephone number of an authorized contact person.
* * * * *
(c) Rejection of request. The Director of the Office of Pipeline
Regulation shall reject within 10 days of the date of filing a request
which patently fails to comply with the provisions of paragraph (b) of
this section, without prejudice to the pipeline's refiling a complete
application.
(d) Publication of notice of request. Unless the request has been
rejected pursuant to paragraph (c) of this section, the Secretary of
the Commission shall issue a notice of the request within 10 days of
the date of the filing, which will then be published in the Federal
Register. * * *
(e) * * *
(2) * * *
United States of America Before the Federal Energy Regulatory
Commission
[Name of pipeline holding the blanket certificate] Docket No.
[Include both docket no. of the blanket certificate and the prior
notice transaction]
Protest to Proposed Blanket Certificate Activity
(Name of Protestor) hereby protests the request filed by (Name
of pipeline) to conduct a (construction of facilities, abandonment,
etc.) under Sec. 157.---- of the Commission's regulations. Protestor
seeks to have this request processed as a separate application.
(Include a detailed statement of Protestor's interest in the
activity and the specific reasons and rationale for the objection
and whether the protestor seeks to be an intervener.)
* * * * *
(g) Withdrawal or dismissal of protests. * * * Within 10 days of
the filing of a protest, the Director of the Office of Pipeline
Regulation will dismiss that protest if it does not raise a substantive
issue and fails to provide any specific detailed reason or rationale
for the objection. If a protest is dismissed, the notice requirements
of this section will not be fulfilled until the earlier of: (1) a 30
day period following the deadline determined in paragraph (d) of this
section has run; or the dismissed protesting party notifying the
Secretary of the Commission that its concerns have been resolved.
* * * * *
29. In Sec. 157.206, paragraphs (b) and (c) are removed; paragraph
(d) is redesignated as paragraph (b); paragraph (f) is redesignated as
(c); paragraph (g) is redesignated as (d); redesignated (b) is amended
to add an introductory text; redesignated (b)(1) is revised; in
redesignated (b)(3)(i)-(iii) the references to paragraph (d) are
removed and a reference to (b) is added in its place; redesignated
(b)(5) is revised; redesignated paragraph (c) is revised; and
paragraphs (e)-(h) are removed to read as follows:
Sec. 157.206 Standard conditions.
* * * * *
(b) Environmental compliance. This paragraph only applies to
activities that involve ground disturbance or changes to operational
air and noise emissions.
(1) The certificate holder shall adopt the requirements set forth
in Sec. 380.15 of this chapter for all activities authorized by the
blanket certificate and shall issue the relevant portions thereof to
construction personnel, with instructions to use them.
* * * * *
(5) The noise attributable to any new compressor station,
compression added to an existing station, or any modification, upgrade
or update of an existing station, must not exceed a day-night level
(Ldn) of 55 dBA at any pre-existing noise-sensitive area
(such as schools, hospitals, or residences).
* * * * *
(c) Commencement. Any authorized construction, extension, or
acquisition shall be completed and made available for service by the
certificate holder and any authorized operation, or service, shall be
available within one year of the date the activity is authorized
pursuant to Sec. 157.205(h). The certificate holder may apply to the
Director of the Office of Pipeline Regulation for an extension of this
deadline due to construction delays. However, if the request for
extension is due to the end-user/shipper not being ready to accept
service, the certificate holder must so notify the Commission in
writing no later than 10 days after expiration of the one-year period.
30. In Sec. 157.207, paragraphs (b) and (c) are revised; paragraph
(f) is removed; paragraphs (g) and (h) are redesignated
[[Page 26608]]
as paragraphs (f) and (g) and paragraph (h) is removed to read as
follows:
Sec. 157.207 General reporting requirements.
* * * * *
(b) For each delivery point authorized under Sec. 157.211(a)(1),
the information required by Sec. 157.211(c);
(c) for each temporary compressor facility under Sec. 157.209, the
information required by Sec. 157.209(b);
* * * * *
31. In Sec. 157.208, the heading is revised; the paragraph
designations (1) and (2) are removed from paragraphs (a) and (b); in
paragraphs (a) and (b) add the word ``replace'' after the word
``construct'' and add a new sentence at the end; remove paragraphs
(c)(6) and (c)(8); paragraph (c)(7) is redesignated as (c)(6),
paragraphs (c)(9)-(11) are redesignated as (c)(7)-(9); in redesignated
(c)(9) the first sentence is revised and a new sentence is added at the
end; in paragraph (d) the reference to ``GNP'' is removed and a
reference to ``GDP'' is added in its place, the words ``and Producer''
are removed from the phrase ``Director of Pipeline and Producer
Regulation'', and the reference to Sec. 375.307(t) is corrected to
Sec. 375.307(d); paragraph (e), the introductory text, and paragraph
(e)(2) are revised, paragraphs (e)(4) and (e)(5) are removed; paragraph
(e)(8) is redesignated as (e)(4), paragraph (e)(9) is redesignated as
(e)(5), and paragraphs (e)(6) and (7) are removed; the second sentence
of paragraph (f)(2) is revised; and in paragraph (g) the words ``and
Producer'' are removed from the phrase ``Director of Pipeline and
Producer Regulation'' to read as follows:
Sec. 157.208 Construction, acquisition, operation, replacement, and
miscellaneous rearrangement of facilities.
(a) * * * The certificate holder shall not segment projects in
order to meet the cost limitations set forth in column 1 of Table I.
* * * * *
(b) * * * The certificate holder shall not segment projects in
order to meet the cost limitations set forth in column 2 of Table I.
* * * * *
(c) * * *
(9) A concise analysis discussing the relevant issues outlined in
Sec. 380.12 of this chapter. * * * Include a copy of the agreements
received for compliance with the Endangered Species Act, National
Historic Preservation Act, and Coastal Zone Management Act.
* * * * *
(e) Reporting requirements. For each facility completed during the
calendar year pursuant to paragraph (a) of this section, the
certificate holder shall file in the manner prescribed in
Secs. 157.6(a) and 385.2011 of this chapter as part of the required
annual report under Sec. 157.207(a) the information described in
paragraphs (e)(1)-(5) of this section. For each facility completed
during the calendar year pursuant to paragraph (b) of this section, the
certificate holder shall file in the manner prescribed above only the
information described in paragraph (e)(3) of this section.
(1) * * *
(2) The specific purpose, location, and beginning and completion
date of construction of the facilities installed, the date service
commenced, and, if applicable, a statement indicating the extent to
which the facilities were jointly constructed;
* * * * *
(f) * * *
(2) * * * In the event that the certificate holder thereafter
wishes to change the maximum operating pressure of lateral facilities
constructed under section 7(c) or facilities constructed under this
section 157.208, it shall file an appropriate request pursuant to the
procedures set forth in Sec. 157.205(b).* * *
* * * * *
32. New Sec. 157.209 is added to read as follows:
Sec. 157.209 Temporary compression facilities.
(a) Automatic authorization. If the cost does not exceed the cost
limitations set forth in column 1 of Table I, under Sec. 158.208(d) of
this chapter, the certificate holder may install, operate and remove
temporary facilities provided that the temporary compressor facilities
shall not be used to increase the volume or service above that rendered
by the involved existing permanent compressor unit(s).
(b) Reporting requirements. As part of the certificate holder's
annual report of projects authorized under paragraph (a) of this
section, the certificate holder must report the following in the manner
prescribed in Secs. 157.6(a) and 385.2011 of this chapter;
(1) A description of the temporary compression facility, including
the size, type and number of compressor units;
(2) The location at which temporary compression was installed,
operated and removed, including its location relative to existing
facilities;
(3) A description of the permanent compression facility which was
unavailable, and a statement explaining the reason for the temporary
compression;
(4) The dates for which the temporary compression was installed,
operated and removed; and
(5) If applicable, the information required in Sec. 157.208(e)(4).
Sec. 157.210 [Removed]
33. Section 157.210 is removed and reserved.
34. In Sec. 157.211, the heading, paragraphs (a), (b)(1)-(5), and
(c)(1)-(3) are revised, a new paragraph (c)(4) is added, and paragraph
(d) is removed to read as follows:
Sec. 157.211 Delivery points.
(a) Construction and operation--(1) Automatic authorization. The
certificate holder may acquire, construct, replace, modify, or operate
any delivery point, excluding the construction of certain delivery
points subject to the prior notice provisions in paragraph (a)(2) of
this section if:
(i) The natural gas is being delivered to, or for the account of, a
shipper for whom the certificate holder is, or will be, authorized to
transport gas; and
(ii) The certificate holder's tariff does not prohibit the addition
of new delivery points.
(2) Prior notice. Subject to the notice procedure in Sec. 157.205,
the certificate holder may acquire, construct, replace, modify, or
operate any delivery point if:
(i) The natural gas is being delivered to, or for the account of,
an end-user that is currently being served by a local distribution
company; and
(ii) The natural gas is being delivered to a shipper for whom the
certificate holder is, or will be, authorized to transport gas; and
(iii) The certificate holder's tariff does not prohibit the
addition of new delivery points.
(b) * * *
(1) The name of the end-user, the location of the delivery point,
and the distribution company currently serving the end-user;
(2) A description of the facility and any appurtenant facilities;
(3) A USGS 7\1/2\-minute series (scale 1:24,000 or 1:25,000)
topographic map (or map of equivalent or greater detail, as
appropriate) showing the location of the proposed facilities;
(4) The quantity of gas to be delivered through the proposed
facility;
(5) A description, with supporting data, of the impact of the
service rendered through the proposed delivery tap upon the certificate
holder's peak day and annual deliveries.
(c) * * *
(1) A description of the facilities acquired, constructed,
replaced, modified or operated pursuant to this section;
[[Page 26609]]
(2) The location and maximum quantities delivered at such delivery
point;
(3) The actual cost and the completion date of the delivery point;
and
(4) The date of each agreement obtained pursuant to
Sec. 157.206(b)(3) and the date construction began.
Sec. 157.212 [Removed]
35. Section 157.212 is removed and reserved.
Sec. 157.213 [Removed]
36. Section 157.213 is removed and reserved.
37. In Sec. 157.215, paragraph (a), introductory texts and
paragraph (b)(1)(iii) are revised to read as follows:
Sec. 157.215 Underground storage testing and development.
(a) Automatic authorization. The certificate holder is authorized
to acquire, construct and operate natural gas pipeline and compression
facilities, including injection, withdrawal, and observation wells for
the testing or development of underground reservoirs for the possible
storage of gas, if:
* * * * *
(b) * * *
(1) * * *
(iii) The cost of such facilities, the date construction began, and
the date they were placed in service;
* * * * *
38. In Sec. 157.216, amend the introductory text of paragraph (a)
to remove the words ``facilities, if'' and add the words ``facilities,
and'' in its place; paragraphs (a) (1) and (2), (b), (c) (1) and (3),
and (d) (1), (2), and (4) are revised; and new paragraphs (c)(5) and
(d)(5) are added to read as follows:
Sec. 157.216 Abandonment.
(a) * * *
(1) a receipt or delivery point, or related supply or delivery
lateral, provided the facility has not been used to provide:
(i) Interruptible transportation service during the one year period
prior to the effective date of the proposed abandonment, or
(ii) Firm transportation service during the one year period prior
to the effective date of the proposed abandonment, provided the point
is no longer covered under a firm contract; or
(2) An eligible facility that was installed pursuant to automatic
authority under Sec. 157.208(a), or that now qualifies for automatic
authority under Sec. 157.208(a), provided the certificate holder
obtains the written consent of the customers served through such
facility. Consent is required from customers that have received service
during the past 12 months.
(b) Prior Notice. Subject to the notice requirements of
Sec. 157.205, the certificate holder is authorized pursuant to section
7(b) of the Natural Gas Act to abandon:
(1) Any receipt or delivery point if all of the existing customers
of the pipeline served through the receipt or delivery point consent in
writing to the abandonment. When filing a request for authorization of
the proposed abandonment under the notice procedures of Sec. 157.205,
the certificate holder shall notify, in writing, the State public
service commission having regulatory authority over retail service to
the customers served through the delivery point.
(2) Any other facility which qualifies as an eligible facility, and
which is not otherwise eligible for automatic authorization under
paragraph (a)(2) of this section, provided the certificate holder
obtains the written consent of all of the customers served through such
facility. Consent is required from customers that have received service
during the immediate past 12 months.
(c) * * *
(1) The location, type, size, and length of the subject facilities;
* * * * *
(3) For each facility an oath statement that all of the customers
served during the past year by the subject facilities have consented to
the abandonment, or an explanation of why the customers' consent is not
available;
* * * * *
(5) For any abandonment resulting in earth disturbance, a USGS 7\1/
2\-minute-series (scale 1:24,000 or 1:25,000) topographic map (or map
of equivalent or greater detail, as appropriate) showing the location
of the proposed facilities.
(d) * * *
(1) A description of the facilities abandoned pursuant to this
section;
(2) The docket number(s) of the certificate(s) authorizing the
construction and operation of the facilities to be abandoned;
* * * * *
(4) The date earth disturbance, if any, related to the abandonment
began and the date the facilities were abandoned; and
(5) The date of the agreements obtained pursuant to
Sec. 157.206(b)(3), if earth disturbance was involved.
39. In Sec. 157.217 paragraph (a) and (b)(2) are revised to read as
follows:
Sec. 157.217 Changes in rate schedules.
(a) Automatic authorization. The certificate holder is authorized
to permit an existing customer, at the customer's request, to change
from Part 157 individually certificated transportation or storage
service to Part 284 transportation or storage service, and to abandon
the Part 157 service, if:
(1) The combined volumetric limitations on deliveries to the
customer under both rate schedules are not increased, for either annual
or peak day limitations;
(2) The conversion will reflect all the maximum rates and charges
associated with the service;
(3) The changes are consistent with the terms of the effective
tariffs on file with the Commission. The certificate holder is granted
a limited waiver of its tariff requiring posting of available capacity.
* * * * *
(b) * * *
(2) The rate schedules and associated rates involved; and
* * * * *
40. In Sec. 157.218, paragraph (a) is revised to read as follows:
Sec. 157.218 Changes in customer name.
(a) Automatic authorization. The effective certificates of the
certificate holder may be amended to the extent necessary to reflect
the change in the name of an existing customer, if the certificate
holder has filed any necessary conforming changes in its Index of
Customers, including the customer's old name.
* * * * *
41. In Appendix I to Subpart F of Part 157, in the reference to
``Sec. 157.206(d)(3)(i)'' in the heading and the references to
Sec. 157.206(d)'' and ``Sec. 157.206(d)(7)'' in the introductory text,
the (d) is removed and a (b) is added in its place; the references to
``Sec. 157.206(d)(2)(vii)'' in paragraphs 2, 3 is removed and
``Sec. 157.206(b)(2)(vi)'' is added in its place, and paragraph 4(b) is
revised to read as follows:
Appendix I to Subpart F of Part 157--Procedures for Compliance With the
Endangered Species Act OF 1973 Under Sec. 157.206(b)(3)(i)
* * * * *
(4) * * *
(b) The certificate holder shall be deemed in compliance with
Sec. 157.206(b)(2)(vi) of the Commission's regulations if the
consulted agency agrees with the certificate holder's determination
resulting from the continued informal consultations, that the
proposed project is not likely to adversely affect a listed species
or critical habitat, or that no further consultation is necessary.
* * * * *
42. Appendix II to Subpart F of Part 157 is revised to read as
follows:
[[Page 26610]]
Appendix II to Subpart F--Procedures for Compliance With the National
Historic Preservation Act of 1966 Under Sec. 157.206(b)(3)(ii)
The following procedures apply to any certificate holder which
undertakes a project under the authority of a blanket certificate
issued pursuant to subparts E or F of part 157 and to any other
service subject to Sec. 157.206(b) of the Federal Energy Regulatory
Commission's (Commission) regulations. For the purposes of this
appendix, the following definitions apply:
(a) ``Listed property'' means any district, site, building,
structure or object which is listed (1) on the National Register of
Historic Places, or (2) in the Federal Register as a property
determined to be eligible for inclusion on the National Register.
(b) ``SHPO'' means the State Historic Preservation Officer or
any alternative person duly designated, in accordance with section
(1)(b) of Appendix II to Subpart F, to advise on cultural resource
matters.
(c) ``Unlisted property'' means any district, site, building,
structure or object which is not a listed property.
(d) ``THPO'' means the Tribal Historic Preservation Officer.
The certificate holder shall be deemed to be in compliance with
Sec. 157.206(b)(2)(iii) of the Commission's regulations only if,
prior to constructing facilities or abandoning facilities by removal
under the blanket certificate, it complies with the following
procedures:
(1)(a) If federally administered land would be directly affected
by the project, then the procedures used by the appropriate Tribal
or Federal land managing agency to comply with section 106 of the
National Historic Preservation Act of 1966, 16 U.S.C. 470f, shall
take precedence over these procedures. The procedures in this
appendix apply to State and private lands, and Federal lands for
which there are no other Federal procedures.
(b) If there is no SHPO, or THPO, if appropriate, or if the
SHPO, or THPO, as appropriate, declines to consult with the
certificate holder, the certificate holder shall so inform the
environmental staff of the Office of Pipeline Regulation and shall
not proceed with these procedures or the project until an alternate
consultant has been duly designated.
(2) It shall be the certificate holder's responsibility to
identify or cause to be identified listed properties and unlisted
properties that satisfy the National Register Criteria for
Evaluation (36 CFR 1202.6), that are located within the area of the
project's potential environmental impact and that may be affected by
the undertaking.
(3) The certificate holder shall:
(a) Check the National Register of Historic Places and consult
with the SHPO, or THPO, as appropriate, to identify all listed
properties within the area of the project's potential environmental
impact;
(b) Consult with the SHPO, or THPO, as appropriate, and to the
extent deemed appropriate by the SHPO, or THPO, as appropriate,
check public records and consult with other individuals and
organizations with historical and cultural expertise, to determine
whether unlisted properties that satisfy the National Register
Criteria for Evaluation are known or likely to occur within the area
of the project's potential environmental impact; and
(c) Consult with the SHPO, or THPO, as appropriate, to determine
the need for surveys to identify unknown unlisted properties. The
certificate holder shall evaluate the eligibility of any known
unlisted properties located within the area of the project's
potential environmental impact according to the National Register
Criteria for Evaluation.
(4) The certificate holder shall be deemed in compliance with
Sec. 157.206(b)(2)(iii) of the Commission's regulations if the SHPO,
or THPO, as appropriate, agrees with the certificate holder that no
survey is required, and that no listed properties or unlisted
properties that satisfy the National Register Criteria for
Evaluation occur in the area of the project's potential
environmental impact.
(5) If the SHPO, or THPO, as appropriate, determines that
surveys are required to ensure that no listed properties, or
unlisted properties that satisfy the National Register Criteria for
Evaluation, occur within the area of the project's potential
environmental impact, the certificate holder shall perform surveys
deemed by the SHPO, or THPO, as appropriate, to be of sufficient
scope and intensity to identify and evaluate such properties. The
certificate holder shall submit the results of the surveys including
a statement as to which unlisted properties satisfy the National
Register Criteria for Evaluation, to the SHPO and solicit comments
on the surveys and the conclusions.
(6) The certificate holder shall be deemed in compliance with
Sec. 157.206(b)(2)(iii) of the Commission's regulations if, upon
conclusion of the surveys, the certificate holder and the SHPO, or
THPO, as appropriate, agree that no listed properties, and no
unlisted properties which satisfy the National Register Criteria for
Evaluation, occur in the area of the project's potential
environmental impact.
(7) For each listed property, and each unlisted property which
satisfies the National Register Criteria for Evaluation, which is
located within the area of the project's potential environmental
impact, the certificate holder, in consultation with the SHPO, shall
apply the Criteria of Effect (36 CFR 800.5) to determine whether the
project will have an effect upon the historical, architectural,
archeological, or cultural characteristics of the property that
qualified it to meet National Register Criteria for Evaluation. The
certificate holder shall be deemed in compliance with
Sec. 157.206(b)(2)(iii) of the Commission's regulations if the
certificate holder and the SHPO agree that the project will not
affect these characteristics.
(8) If either the certificate holder or the SHPO, or THPO, as
appropriate, finds that the project may affect a listed property or
an unlisted property which satisfies the National Register Criteria
for Evaluation, located within the area of the project's potential
environmental impact, then the project shall not be authorized under
the blanket certificate unless such properties can be avoided by
relocation of the project to an area where the SHPO, or THPO, as
appropriate, agrees that no listed properties or unlisted properties
that satisfy the National Register Criteria for Evaluation occur.
The certificate holder shall be deemed in compliance with
Sec. 157.206(b)(2)(iii) of the Commission's regulations if the
project is relocated as described above.
(9) If the certificate holder and the SHPO, or THPO, as
appropriate, are unable to agree upon the need for a survey, the
adequacy of a survey, or the results of application of the National
Register Criteria for Evaluation to an unlisted property, the
project shall not be authorized under the blanket certificate.
PART 284--CERTAIN SALES AND TRANSPORTATION OF NATURAL GAS UNDER THE
NATURAL GAS ACT, THE NATURAL GAS POLICY ACT OF 1978 AND RELATED
AUTHORITIES.
43. The authority citation for part 284 continues to read as
follows:
Authority: 15 U.S.C. 717-717w, 3301-3432; 42 U.S.C. 7101-7352;
43 U.S.C. 1331-1356.
44. In Sec. 284.221, paragraph (d)(1) is amended to remove the
``s'' from the word ``paragraphs'' and to remove the phrase ``and
(d)(3)''; paragraph (d)(3) is removed; the word ``replacement,'' is
added to paragraph (f)(3) after the word ``operation''; paragraph
(f)(4) is revised; and the phrase ``and Sec. 157.212'' is removed from
paragraph (h)(3) to read as follows:
Sec. 284.221 General rule; transportation by interstate pipeline on
behalf of others.
* * * * *
(f) * * *
(4) Authorization for delivery points is subject to the automatic
authorization under Sec. 157.211(a)(1) and the prior notice procedures
under Sec. 157.211(a)(2) and Sec. 157.205.
* * * * *
45. Section 284.262 is revised to read as follows:
Sec. 284.262 Definitions.
For purposes of this subpart:
Emergency means:
(1) Any situation in which an actual or expected shortage of gas
supply or capacity would require an interstate pipeline company,
intrastate pipeline, local distribution company, or Hinshaw pipeline to
curtail deliveries of gas or provide less than the projected level of
service to any pipeline customer, including any situation in which
additional supplies or capacity are necessary to ensure a pipeline's
contracted level of service to any customer, but not including any
situation in which additional supplies or capacity are needed to
increase the contracted level of service to an existing
[[Page 26611]]
customer or to provide service to a new customer; or
(2) A sudden unanticipated loss of natural gas supply or capacity;
or
(3) An anticipated loss of natural gas supply or capacity due to a
foreseeable facility outage resulting from a landslide or riverbed
erosion or other natural forces beyond the participant's control.
Participants may seek a temporary certificate under Secs. 157.17 of
this chapter if the facilities to remedy the emergency cannot be
constructed automatically under Sec. 2.55(b) or Sec. 157.208(a) of this
chapter.
(4) A situation in which the participant, in good faith, determines
that immediate action is required or is reasonably anticipated to be
required for protection of life or health or for maintenance of
physical property.
Emergency does not mean any situation resulting from a failure by
any person to transport natural gas under subpart B, C, or G of this
part.
Projected level of service means the level of gas volumes to be
delivered by the company for each customer and additional gas volumes
needed by a customer due solely to a weather-induced increase in
requirements.
Emergency natural gas means natural gas sold, transported, or
exchanged in an emergency natural gas transaction.
Emergency natural gas transaction means the sale, transportation,
or exchange of natural gas (including the construction and operation of
necessary facilities) conducted pursuant to this subpart, that is:
(1) Necessary to alleviate an emergency; and
(2) Not anticipated to extend for more than 60 days in duration.
Emergency facilities means any facilities necessary to alleviate
the emergency within the time frame established in Sec. 284.264(b).
Participants can seek permanent authority to operate the emergency
facilities either under the temporary certificate provisions of
Sec. 157.17 of this chapter or the prior notice provisions of
Sec. 157.208(b) of this chapter.
Participant means any first seller, interstate pipeline, intrastate
pipeline, local distribution company or Hinshaw pipeline that
participates in an emergency natural gas transaction under this
subpart.
Recipient means:
(1) In the case of a sale of emergency natural gas, the purchaser
of such gas; or
(2) In the case of a transportation or exchange of natural gas when
there is no sale of emergency natural gas under this subpart, the
participant who receives the gas.
Hinshaw pipeline means a pipeline that is exempt from the Natural
Gas Act jurisdiction of the Commission by reason of section 1(c) of the
Natural Gas Act.
Sec. 284.288 [Removed]
46. Section 284.288 is removed and reserved.
PART 375--THE COMMISSION
47. The authority citation for Part 375 continues to read as
follows:
Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16
U.S.C. 791-825r, 2601-2645; 42 U.S.C. 7101-7352.
48. In Sec. 375.307, paragraph (a)(1) is revised; paragraph (a)(2)
is removed; paragraphs (a)(3)-(5) are redesignated as paragraphs
(a)(2)-(4) and are revised; paragraphs (a)(6) and (a)(7) are
redesignated as (a)(5) and (6); paragraphs (a)(8) and (a)(9) are
removed; paragraph (a)(10)-(12) are redesignated as (a)(7)-(9); new
paragraph (a)(10) is added; paragraphs (a)(14)-(16) are redesignated as
(a)(11)-(13), and paragraphs(a)(17) and (a)(18) are removed; paragraphs
(b)(4) and (5) and (c) are removed; paragraph (d) is redesignated as
(c); paragraphs (e)(3) and (7) are removed; paragraphs (e)(4)-(6) are
redesignated as (e)(3)-(5); paragraphs (e)-(g) are redesignated as (d)-
(f); and redesignated paragraph (e)(3) is revised all to read as
follows:
Sec. 375.307 Delegations to the Director of the Office of Pipeline
Regulation.
* * * * *
(a) * * *
(1) Applications or amendments requesting authorization for the
construction or acquisition and operation of facilities that have a
construction or acquisition cost less than the limits specified in
Column 2 of Table I in Sec. 157.208(d) of this chapter;
(2) Applications by a pipeline for the abandonment of pipeline
facilities or for the deletion of delivery points;
(3) Applications to abandon pipeline facilities or services
involving a specific customer or customers, if such customer or
customers have agreed to the abandonment;
(4) Applications for temporary or permanent certificates (and for
amendments thereto) for the transportation, exchange, or storage of
natural gas, provided that the cost of construction of the certificate
applicant's related facility is less than the limits specified in
Column 2 of Table I in Sec. 157.208(d) of this chapter.
* * * * *
(10) Dismiss any protest to prior notice filings made pursuant to
Sec. 157.205 of this chapter that does not raise a substantive issue
and fails to provide any specific detailed reason or rationale for the
objection;
* * * * *
(e) * * *
(3) Fees prescribed in Secs. 381.207 and 381.403 of this chapter in
accordance with Secs. 381.106(b) of this chapter;
PART 380-REGULATIONS IMPLEMENTING THE NATIONAL ENVIRONMENTAL POLICY
ACT
49. The authority citation for Part 380 continues to read as
follows:
Authority: National Environmental Policy Act of 1969, 42 U.S.C.
4321-4370a; Department of Energy Organization Act, 42 U.S.C. 7101-
7352; E.O. 12009, 3 CFR 1978 Comp., p. 142.
Sec. 380.3 [Amended]
50. Section 380.3(c)(2) is amended to add the words ``Sec. 380.12
and'' after the words ``information identified in''.
Sec. 380.4 [Amended]
51. In Sec. 380.4(a)(28) remove the word ``tops'' and add the word
``taps'' in its place.
52. New Sec. 380.12, is added to read as follows:
Sec. 380.12 Environmental Reports for Natural Gas Act Applications.
(a) Introduction. (1) The applicant must submit an environmental
report with any application that proposes the construction, operation,
or abandonment of any facility identified in Sec. 380.3(c)(2)(i). The
environmental report shall consist of the thirteen resource reports and
related material described in this section.
(2) The detail of each resource report must be commensurate with
the complexity of the proposal and its potential for environmental
impact. Each topic in each resource report shall be addressed or its
omission justified, unless the resource report description indicates
that the data is not required for that type of proposal. If material
required for one resource report is provided in another resource report
or in another exhibit, it may be incorporated by reference. If any
resource report topic is required for a particular project but is not
provided at the time the application is filed, the environmental report
shall explain why it is missing and when the applicant anticipates it
will be filed.
(3) The appendix to this part contains a checklist of the minimum
filing requirements for an environmental report. Failure to provide at
least the applicable checklist items will result in rejection of the
application unless the
[[Page 26612]]
Director of OPR determines that the applicant has provided an
acceptable reason for the item's absence and an acceptable schedule for
filing it. Failure to file within the accepted schedule will result in
rejection of the application.
(b) General requirements. As appropriate, each resource report
shall:
(1) Address conditions or resources that might be directly or
indirectly affected by the project.
(2) Identify significant environmental effects expected to occur as
a result of the project;
(3) Identify the effects of construction, operation (including
maintenance and malfunctions), and termination of the project, as well
as cumulative effects resulting from existing or reasonably foreseeable
projects;
(4) Identify measures proposed to enhance the environment or to
avoid, mitigate, or compensate for adverse effects of the project;
(5) Provide a list of publications, reports, and other literature
or communications, including agency contacts, that were cited or relied
upon to prepare each report. This list should include the name and
title of the person contacted, their affiliations, and telephone
number.
(6) Whenever this section refers to ``mileposts'' the applicant may
substitute ``survey centerline stationing'' if so desired. However,
whatever method is chosen should be used consistently throughout the
resource reports.
(c) Resource Report 1--General project description. This report is
required for all applications. It will describe facilities associated
with the project, special construction and operation procedures,
construction timetables, future plans for related construction,
compliance with regulations and codes, and permits that must be
obtained. Resource Report 1 must:
(1) Describe and provide location maps of all jurisdictional
facilities, including all aboveground facilities associated with the
project (such as: meter stations, pig launchers/receivers, valves), to
be constructed, modified, abandoned, replaced, or removed, including
related construction and operational support activities and areas such
as maintenance bases, staging areas, communications towers, power
lines, and new access roads (roads to be built or modified). As
relevant, the report must describe the length and diameter of the
pipeline, the types of aboveground facilities that would be installed,
and associated land requirements. It must also identify other companies
that must construct jurisdictional facilities related to the project,
where the facilities would be located, and where they are in the
Commission's approval process.
(2) Identify and describe all nonjurisdictional facilities,
including auxiliary facilities, that will be built in association with
the project, including facilities to be built by other companies.
(i) Provide the following information:
(A) A brief description of each facility, including as appropriate:
Ownership, land requirements, gas consumption, megawatt size,
construction status, and an update of the latest status of Federal,
state, and local permits/approvals;
(B) The length and diameter of any interconnecting pipeline;
(C) Current 1:24,000/1:25,000 scale topographic maps showing the
location of the facilities;
(D) Correspondence with the appropriate State Historic Preservation
Officer (SHPO) or duly authorized Tribal Historic Preservation Officer
(THPO) for tribal lands regarding whether properties eligible for
listing on the National Register of Historic Places (NRHP) would be
affected;
(E) Correspondence with the U.S. Fish and Wildlife Service (and
National Marine Fisheries Service, if appropriate) regarding potential
impacts of the proposed facility on federally listed threatened and
endangered species; and
(F) For facilities within a designated coastal zone management
area, a consistency determination or evidence that the owner has
requested a consistency determination from the state's coastal zone
management program.
(ii) Address each of the following factors and indicate which ones,
if any, appear to indicate the need for the Commission to do an
environmental review of project-related nonjurisdictional facilities.
(A) Whether or not the regulated activity comprises ``merely a
link'' in a corridor type project (e.g., a transportation or utility
transmission project).
(B) Whether there are aspects of the nonjurisdictional facility in
the immediate vicinity of the regulated activity which uniquely
determine the location and configuration of the regulated activity.
(C) The extent to which the entire project will be within the
Commission's jurisdiction.
(D) The extent of cumulative Federal control and responsibility.
(3) Provide the following maps and photos:
(i) Current, original United States Geological Survey (USGS) 7.5-
minute series topographic maps or maps of equivalent detail, covering
at least a 0.5-mile-wide corridor centered on the pipeline, with
integer mileposts identified, showing the location of rights-of-way,
new access roads, other linear construction areas, compressor stations,
and pipe storage areas. Show nonlinear construction areas on maps at a
scale of 1:3,600 or larger keyed graphically and by milepost to the
right-of-way maps.
(ii) Original aerial images or photographs or photo-based alignment
sheets based on these sources, not more than 1 year old (unless older
ones accurately depict current land use and development) and with a
scale of 1:6,000 or larger, showing the proposed pipeline route and
location of major aboveground facilities, covering at least a 0.5 mile-
wide corridor, and including mileposts. Older images/photographs/
alignment sheets should be modified to show any residences not depicted
in the original. Alternative formats (e.g., blue-line prints of
acceptable resolution) need prior approval by the environmental staff
of the Office of Pipeline Regulation.
(iii) In addition to the copy required under Sec. 157.6(a)(2) of
this chapter, applicant should send two additional copies of
topographic maps and aerial images/photographs directly to the
environmental staff of the Office of Pipeline Regulation.
(4) When new or additional compression is proposed, include large
scale (1:3,600 or greater) plot plans of each compressor station. The
plot plan should reference a readily identifiable point(s) on the USGS
maps required in paragraph (c)(3) of this section. The maps and plot
plans must identify the location of the nearest noise-sensitive areas
(schools, hospitals, or residences) within 1 mile of the compressor
station, existing and proposed compressor and auxiliary buildings,
access roads, and the limits of areas that would be permanently
disturbed.
(5) Identify aboveground facilities to be abandoned, how they would
be abandoned, and how the site would be restored.
(6) Describe and identify by milepost, proposed construction and
restoration methods to be used in areas of rugged topography,
residential areas, active croplands, sites where the pipeline would be
located parallel to and under roads, and sites where explosives are
likely to be used.
(7) Unless provided in response to Resource Report 5, describe
estimated workforce requirements, including the number of pipeline
construction spreads, average workforce
[[Page 26613]]
requirements for each construction spread and meter or compressor
station, estimated duration of construction from initial clearing to
final restoration, and number of personnel to be hired to operate the
proposed project.
(8) Describe reasonably foreseeable plans for future expansion of
facilities, including additional land requirements and the
compatibility of those plans with the current proposal.
(9) Describe all authorizations required to complete the proposed
action and the status of applications for such authorizations. Identify
environmental mitigation requirements specified in any permit or
proposed in any permit application to the extent not specified
elsewhere in this section.
(10) Provide the names and addresses of all landowners whose land
would be crossed by the project facilities. Include the names and
addresses of all residents adjacent to new or modified compressor
stations.
(d) Resource Report 2--Water use and quality. This report is
required for all applications, except those which involve only
facilities within the areas of an existing compressor, meter, or
regulator station that were disturbed by construction of the existing
facilities, no wetlands or waterbodies are on the site and there would
not be a significant increase in water use. The report must describe
water quality and provide data sufficient to determine the expected
impact of the project and the effectiveness of mitigative, enhancement,
or protective measures. Resource Report 2 must:
(1) Identify and describe by milepost perennial waterbodies and
municipal water supply or watershed areas, specially designated surface
water protection areas and sensitive waterbodies, and wetlands that
would be crossed. For each waterbody crossing, identify the approximate
width, state water quality classifications, any known potential
pollutants present in the water or sediments, and any potable water
intake sources within 3 miles downstream.
(2) Compare proposed mitigation measures with the staff's current
``Wetland and Waterbody Construction and Mitigation Procedures,'' which
are available from the Commission Internet home page or the Commission
staff, describe what proposed alternative mitigation would provide
equivalent or greater protection to the environment, and provide a
description of site- specific construction techniques that would be
used at each major waterbody crossing.
(3) Describe typical staging area requirements at waterbody and
wetland crossings. Also, identify and describe waterbodies and wetlands
where staging areas are likely to be more extensive.
(4) Include National Wetland Inventory (NWI) maps. If NWI maps are
not available, provide the appropriate state wetland maps. Identify for
each crossing, the milepost, the wetland classification specified by
the U.S. Fish and Wildlife Service, and the length of the crossing.
Include two copies of the NWI maps (or the substitutes, if NWI maps are
not available) clearly showing the proposed route and mileposts
directed to the environmental staff. Describe by milepost, wetland
crossings as determined by field delineations using the current Federal
methodology.
(5) Identify aquifers within excavation depth in the project area,
including the depth of the aquifer, current and projected use, water
quality and average yield, and known or suspected contamination
problems.
(6) Describe specific locations, the quantity required, and the
method and rate of withdrawal and discharge of hydrostatic test water.
Describe suspended or dissolved material likely to be present in the
water as a result of contact with the pipeline, particularly if an
existing pipeline is being retested. Describe chemical or physical
treatment of the pipeline or hydrostatic test water. Discuss waste
products generated and disposal methods.
(7) If underground storage of natural gas is proposed:
(i) Identify how water produced from the storage field will be
disposed of, and
(ii) For salt caverns, identify the source locations, the quantity
required, and the method and rate of withdrawal of water for creating
salt cavern(s), as well as the means of disposal of brine resulting
from cavern leaching.
(8) Discuss proposed mitigation measures to reduce the potential
for adverse impacts to surface water, wetlands, or groundwater quality
to the extent they are not described in response to paragraph (d)(2) of
this section. Discuss the potential for blasting to affect water wells,
springs, and wetlands, and measures to be taken to detect and remedy
such effects.
(9) Identify the location of known public and private groundwater
supply wells or springs within 150 feet of proposed construction areas.
Identify locations of EPA or state-designated sole-source aquifers and
wellhead protection areas crossed by the proposed pipeline facilities.
(e) Resource Report 3--Fish, wildlife, and vegetation. This report
is required for all applications, except those involving only
facilities within the improved area of an existing compressor, meter,
or regulator station. It must describe aquatic life, wildlife, and
vegetation in the vicinity of the proposed project; expected impacts on
these resources including potential effects on biodiversity; and
proposed mitigation, enhancement or protection measures. Resource
Report 3 must:
(1) Describe commercial and recreational warmwater, coldwater, and
saltwater fisheries in the affected area and associated significant
habitats such as spawning or rearing areas and estuaries.
(2) Describe terrestrial habitats, including wetlands, typical
wildlife habitats, and rare, unique, or otherwise significant habitats
that might be affected by the proposed action. Describe typical species
that have commercial, recreational, or aesthetic value.
(3) Describe and provide the affected acreage of vegetation cover
types that would be affected, including unique ecosystems or
communities such as remnant prairie or old-growth forest, or
significant individual plants, such as old-growth specimen trees.
(4) Describe the impact of construction and operation on aquatic
and terrestrial species and their habitats, including the possibility
of a major alteration to ecosystems or biodiversity, and any potential
impact on state-listed endangered or threatened species. Describe the
impact of maintenance, clearing and treatment of the project area on
fish, wildlife, and vegetation. Surveys may be required to determine
specific areas of significant habitats or communities of species of
special concern to state or local agencies.
(5) Identify all federally listed or proposed endangered or
threatened species and critical habitat that potentially occur in the
vicinity of the project. Discuss the results of the consultation
requirements listed in Sec. 380.13(b) at least through
Sec. 380.13(b)(5)(i) and include any written correspondence that
resulted from the consultation. The initial application must include
the results of any required surveys unless seasonal considerations make
this impractical. If species surveys are impractical, there must be
field surveys to determine the presence of suitable habitat unless the
entire project area is suitable habitat.
(6) Describe site-specific mitigation measures to minimize impacts
on fisheries, wildlife, and vegetation.
(7) Include copies of correspondence not provided pursuant to
paragraph (e)(5) of this section, containing recommendations from
appropriate Federal and state fish and wildlife agencies to avoid or
limit impact on
[[Page 26614]]
wildlife, fisheries, and vegetation, and the applicant's response to
the recommendations.
(f) Resource Report 4--Cultural resources. This report is required
for all applications. In order to prepare this report, the applicant
must follow the principles in Sec. 380.14 of this part. Guidance on the
content and the format for the documentation listed below, as well as
professional qualifications of preparers, is detailed in ``OPR's
Guidelines for Reporting on Cultural Resources Investigations,'' which
is available from the Commission Internet home page or from the
Commission staff.
(1) Resource Report 4 must contain:
(i) Documentation of the applicant's initial cultural resources
consultation, including consultations with Native Americans and other
interested persons (if appropriate);
(ii) Overview and Survey Reports, as appropriate;
(iii) Evaluation Report, as appropriate;
(iv) Treatment Plan, as appropriate; and
(v) Written comments from State Historic Preservation Officer(s)
(SHPO), Tribal Historic Preservation Officers (THPO), as appropriate,
and applicable land-managing agencies on the reports in paragraphs
(f)(1)(i)-(iv) of this section.
(2) The initial application must include the Documentation of
initial cultural resource consultation, the Overview and Survey
Reports, if required, and written comments from SHPOs, THPOs and land-
managing agencies, if available. The initial cultural resources
consultations should establish the need for surveys. If deemed
necessary, the survey report must be filed with the application.
(i) If the comments of the SHPOs, THPOs, or land-management
agencies are not available at the time the application is filed, they
may be filed separately, but they must be filed before a final
certificate is issued.
(ii) If landowners deny access to private property and certain
areas are not surveyed, the unsurveyed area must be identified by
mileposts, and supplemental surveys or evaluations shall be conducted
after access is granted. In such circumstances, reports, and treatment
plans, if necessary, for those inaccessible lands may be filed after a
certificate is issued.
(3) The Evaluation Report and Treatment Plan, if required, for the
entire project must be filed before a final certificate is issued.
(i) The Evaluation Report may be combined in a single synthetic
report with the Overview and Survey Reports if the SHPOs, THPOs, and
land-management agencies allow and if it is available at the time the
application is filed.
(ii) In preparing the Treatment Plan, the applicant must consult
with the Commission staff, the SHPO, and any applicable THPO and land-
management agencies.
(iii) Authorization to implement the Treatment Plan will occur only
after the final certificate is issued.
(4) Applicant must request privileged treatment for all material
filed with the Commission containing location, character, and ownership
information about cultural resources in accordance with Sec. 388.112 of
this chapter. The cover and relevant pages or portions of the report
should be clearly labeled in bold lettering: ``CONTAINS PRIVILEGED
INFORMATION--DO NOT RELEASE.''
(5) Except as specified in a final Commission order, or by the
Director of the Office of Pipeline Regulation, construction may not
begin until all cultural resource reports and plans have been approved.
(g) Resource Report 5--Socioeconomics. This report is required only
for applications involving significant aboveground facilities,
including, among others, conditioning or liquefied natural gas (LNG)
plants. It must identify and quantify the impacts of constructing and
operating the proposed project on factors affecting towns and counties
in the vicinity of the project. Resource Report 5 must:
(1) Describe the socioeconomic impact area.
(2) Evaluate the impact of any substantial immigration of people on
governmental facilities and services and plans to reduce the impact on
the local infrastructure.
(3) Describe on-site manpower requirements and payroll during
construction and operation, including the number of construction
personnel who currently reside within the impact area, would commute
daily to the site from outside the impact area, or would relocate
temporarily within the impact area.
(4) Determine whether existing housing within the impact area is
sufficient to meet the needs of the additional population.
(5) Describe the number and types of residences and businesses that
would be displaced by the project, procedures to be used to acquire
these properties, and types and amounts of relocation assistance
payments.
(6) Conduct a fiscal impact analysis evaluating incremental local
government expenditures in relation to incremental local government
revenues that would result from construction of the project.
Incremental expenditures include, but are not limited to, school
operating costs, road maintenance and repair, public safety, and public
utility costs.
(h) Resource Report 6--Geological resources. This report is
required for applications involving LNG facilities and all other
applications, except those involving only facilities within the
boundaries of existing aboveground facilities, such as a compressor,
meter, or regulator station. It must describe geological resources and
hazards in the project area that might be directly or indirectly
affected by the proposed action or that could place the proposed
facilities at risk, the potential effects of those hazards on the
facility, and methods proposed to reduce the effects or risks. Resource
Report 6 must:
(1) Describe, by milepost, mineral resources that are currently or
potentially exploitable;
(2) Describe, by milepost, existing and potential geological
hazards and areas of nonroutine geotechnical concern, such as high
seismicity areas, active faults, and areas susceptible to soil
liquefaction; planned, active, and abandoned mines; karst terrain; and
areas of potential ground failure, such as subsidence, slumping, and
landsliding. Discuss the hazards posed to the facility from each one.
(3) Describe how the project would be located or designed to avoid
or minimize adverse effects to the resources or risk to itself,
including geotechnical investigations and monitoring that would be
conducted before, during, and after construction. Discuss also the
potential for blasting to affect structures, and the measures to be
taken to remedy such effects.
(4) Specify methods to be used to prevent project-induced
contamination from surface mines or from mine tailings along the right-
of-way and whether the project would hinder mine reclamation or
expansion efforts.
(5) If the application involves an LNG facility located in zones 2,
3, or 4 of the Uniform Building Code's Seismic Risk Map, or where there
is potential for surface faulting or liquefaction, prepare a report on
earthquake hazards and engineering in conformance with ``Data
Requirements for the Seismic Review of LNG Facilities,'' NBSIR 84-2833.
This document may be obtained from the Commission staff.
(6) If the application is for underground storage facilities:
(i) Describe how the applicant would control and monitor the
drilling activity
[[Page 26615]]
of others within the field and buffer zone;
(ii) Describe how the applicant would monitor potential effects of
the operation of adjacent storage or production facilities on the
proposed facility, and vice versa;
(iii) Describe measures taken to locate and determine the condition
of old wells within the field and buffer zone and how the applicant
would reduce risk from failure of known and undiscovered wells; and
(iv) Identify and discuss safety and environmental safeguards
required by state and Federal drilling regulations.
(i) Resource Report 7--Soils. This report is required for all
applications except those not involving soil disturbance. It must
describe the soils that would be affected by the proposed project, the
effect on those soils, and measures proposed to minimize or avoid
impact. Resource Report 7 must:
(1) List, by milepost, the soil associations that would be crossed
and describe the erosion potential, fertility, and drainage
characteristics of each association.
(2) If an aboveground facility site is greater than 5 acres:
(i) List the soil series within the property and the percentage of
the property comprised of each series;
(ii) List the percentage of each series which would be permanently
disturbed;
(iii) Describe the characteristics of each soil series; and
(iv) Indicate which are classified as prime or unique farmland by
the U.S. Department of Agriculture, Natural Resources Conservation
Service.
(3) Identify, by milepost, potential impact from: Soil erosion due
to water, wind, or loss of vegetation; soil compaction and damage to
soil structure resulting from movement of construction vehicles; wet
soils and soils with poor drainage that are especially prone to
structural damage; damage to drainage tile systems due to movement of
construction vehicles and trenching activities; and interference with
the operation of agricultural equipment due to the probability of large
stones or blasted rock occurring on or near the surface as a result of
construction.
(4) Identify, by milepost, cropland and residential areas where
loss of soil fertility due to trenching and backfilling could occur.
(5) Describe proposed mitigation measures to reduce the potential
for adverse impact to soils or agricultural productivity. Compare
proposed mitigation measures with the staff's current ``Upland Erosion
Control, Revegetation and Maintenance Plan'', which is available from
the Commission Internet home page or from the Commission staff, and
explain how proposed mitigation measures provide equivalent or greater
protections to the environment.
(j) Resource Report 8-- Land use, recreation and aesthetics. This
report is required for all applications except those involving only
facilities which are of comparable use at existing compressor, meter,
and regulator stations. It must describe the existing uses of land on,
and (where specified) within 0.25 mile of, the proposed project and
changes to those land uses that would occur if the project is approved.
The report shall discuss proposed mitigation measures, including
protection and enhancement of existing land use. Resource Report 8
must:
(1) Describe the width and acreage requirements of all construction
and permanent rights-of-way and the acreage required for each proposed
plant and operational site, including injection or withdrawal wells.
(i) List, by milepost, locations where the proposed right-of-way
would be adjacent to existing rights-of-way of any kind.
(ii) Identify, preferably by diagrams, existing rights-of-way that
would be used for a portion of the construction or operational right-
of-way, the overlap and how much additional width would be required.
(iii) Identify the total amount of land to be purchased or leased
for each aboveground facility, the amount of land that would be
disturbed for construction and operation of the facility, and the use
of the remaining land not required for project operation.
(iv) Identify the size of typical staging areas and expanded work
areas, such as those at railroad, road, and waterbody crossings, and
the size and location of all pipe storage yards and access roads.
(2) Identify, by milepost, the existing use of lands crossed by the
proposed pipeline, or on or adjacent to each proposed plant and
operational site.
(3) Describe planned development on land crossed or within 0.25
mile of proposed facilities, the time frame (if available) for such
development, and proposed coordination to minimize impacts on land use.
Planned development means development which is included in a master
plan or is on file with the local planning board or the county.
(4) Identify, by milepost and length of crossing, the area of
direct effect of each proposed facility and operational site on sugar
maple stands, orchards and nurseries, landfills, operating mines,
hazardous waste sites, state wild and scenic rivers, state or local
designated trails, nature preserves, game management areas, remnant
prairie, old-growth forest, national or state forests, parks, golf
courses, designated natural, recreational or scenic areas, or
registered natural landmarks, Native American religious sites and
traditional cultural properties to the extent they are known to the
public at large, and reservations, lands identified under the Special
Area Management Plan of the Office of Coastal Zone Management, National
Oceanic and Atmospheric Administration, and lands owned or controlled
by Federal or state agencies or private preservation groups. Also
identify if any of those areas are located within 0.25 mile of any
proposed facility.
(5) Identify, by milepost, all residences and buildings within 50
feet of the proposed pipeline construction right-of-way and the
distance of the residence or building from the right-of- way. Provide
survey drawings or alignment sheets to illustrate the location of the
facilities in relation to the buildings.
(6) Describe any areas crossed by or within 0.25 mile of the
proposed pipeline or plant and operational sites which are included in,
or are designated for study for inclusion in: The National Wild and
Scenic Rivers System (16 U.S.C. 1271); The National Trails System (16
U.S.C. 1241); or a wilderness area designated under the Wilderness Act
(16 U.S.C. 1132).
(7) For facilities within a designated coastal zone management
area, provide a consistency determination or evidence that the
applicant has requested a consistency determination from the state's
coastal zone management program.
(8) Describe the impact the project will have on present uses of
the affected area as identified above, including commercial uses,
mineral resources, recreational areas, public health and safety, and
the aesthetic value of the land and its features. Describe any
temporary or permanent restrictions on land use resulting from the
project.
(9) Describe mitigation measures intended for all special use areas
identified under paragraphs (j)(2) through (6) of this section.
(10) Describe proposed typical mitigation measures for each
residence that is within 50 feet of the edge of the pipeline
construction right-of-way, as well as any proposed residence-specific
mitigation. Describe how residential property, including for example,
fences, driveways, stone walls, sidewalks, water supply, and septic
systems, would be
[[Page 26616]]
restored. Describe compensation plans for temporary and permanent
rights-of-way and the eminent domain process for the affected areas.
(11) Describe measures proposed to mitigate the aesthetic impact of
the facilities especially for aboveground facilities such as compressor
or meter stations.
(12) Demonstrate that applications for rights-of-way or other
proposed land use have been or soon will be filed with Federal land-
management agencies with jurisdiction over land that would be affected
by the project.
(k) Resource Report 9--Air and noise quality. This report is
required for applications involving compressor facilities at new or
existing stations, and for all new LNG facilities. It must identify the
effects of the project on the existing air quality and noise
environment and describe proposed measures to mitigate the effects.
Resource Report 9 must:
(1) Describe the existing air quality, including background levels
of nitrogen dioxide and other criteria pollutants which may be emitted
above EPA-identified significance levels.
(2) Quantitatively describe existing noise levels at noise-
sensitive areas, such as schools, hospitals, or residences and include
any areas covered by relevant state or local noise ordinances.
(i) Report existing noise levels as the Leq (day),
Leq (night), and Ldn and include the basis for
the data or estimates.
(ii) For existing compressor stations, include the results of a
sound level survey at the site property line and nearby noise-sensitive
areas while the compressors are operated at full load.
(iii) For proposed new compressor station sites, measure or
estimate the existing ambient sound environment based on current land
uses and activities.
(iv) Include a plot plan that identifies the locations and duration
of noise measurements, the time of day, weather conditions, wind speed
and direction, engine load, and other noise sources present during each
measurement.
(3) Estimate the impact of the project on air quality, including
how existing regulatory standards would be met.
(i) Provide the emission rate of nitrogen oxides from existing and
proposed facilities, expressed in pounds per hour and tons per year for
maximum operating conditions, include supporting calculations, emission
factors, fuel consumption rates, and annual hours of operation.
(ii) For major sources of air emissions (as defined by the
Environmental Protection Agency), provide copies of applications for
permits to construct (and operate, if applicable) or for applicability
determinations under regulations for the prevention of significant air
quality deterioration and subsequent determinations.
(4) Provide a quantitative estimate of the impact of the project on
noise levels at noise-sensitive areas, such as schools, hospitals, or
residences.
(i) Include step-by-step supporting calculations or identify the
computer program used to model the noise levels, the input and raw
output data and all assumptions made when running the model, far-field
sound level data for maximum facility operation, and the source of the
data.
(ii) Include sound pressure levels for unmuffled engine inlets and
exhausts, engine casings, and cooling equipment; dynamic insertion loss
for all mufflers; sound transmission loss for all compressor building
components, including walls, roof, doors, windows, and ventilation
openings; sound attenuation from the station to nearby noise-sensitive
areas; the manufacturer's name, the model number, the performance
rating; and a description of each noise source and noise control
component to be employed at the proposed compressor station.
(iii) Far-field sound level data measured from similar units in
service elsewhere, when available, may be substituted for
manufacturer's far-field sound level data.
(iv) If specific noise control equipment has not been chosen,
include a schedule for submitting the data prior to certification.
(v) The estimate must demonstrate that the project will comply with
applicable noise regulations and show how the facility will meet the
following requirements:
(A) The noise attributable to any new compressor station,
compression added to an existing station, or any modification, upgrade
or update of an existing station, must not exceed a day- night sound
level (Ldn) of 55 dBA at any pre-existing noise-sensitive
area (such as schools, hospitals, or residences).
(B) New compressor stations or modifications of existing stations
shall not result in a perceptible increase in vibration at any noise-
sensitive area.
(5) Describe measures and manufacturer's specifications for
equipment proposed to mitigate impact to air and noise quality,
including emission control systems, installation of filters, mufflers,
or insulation of piping and buildings, and orientation of equipment
away from noise-sensitive areas.
(l) Resource Report 10--Alternatives. This report is required for
all applications. It must describe alternatives to the project and
compare the environmental impacts of such alternatives to those of the
proposal. The discussion must demonstrate how environmental benefits
and costs were weighed against economic benefits and costs, and
technological and procedural constraints. The potential for each
alternative to meet project deadlines and the environmental
consequences of each alternative shall be discussed. Resource Report 10
must:
(1) Discuss the ``no action'' alternative and the potential for
accomplishing the proposed objectives through the use of other systems
and/or energy conservation. Provide an analysis of the relative
environmental benefits and costs for each alternative.
(2) Describe alternative routes or locations considered for each
facility during the initial screening for the project.
(i) For alternative routes considered in the initial screening for
the project but eliminated, describe the environmental characteristics
of each route or site, and the reasons for rejecting it. Identify the
location of such alternatives on maps of sufficient scale to depict
their location and relationship to the proposed action, and the
relationship of the pipeline to existing rights-of-way.
(ii) For alternative routes or locations considered for more in-
depth consideration, describe the environmental characteristics of each
route or site and the reasons for rejecting it. Provide comparative
tables showing the differences in environmental characteristics for the
alternative and proposed action. The location of any alternatives in
this paragraph shall be provided on maps equivalent to those required
in paragraph (c)(2) of this section.
(m) Resource Report 11--Reliability and safety. This report is
required for applications involving new or recommissioned LNG
facilities. Information previously filed with the Commission need not
be refiled if the applicant verifies its continued validity. This
report shall address the potential hazard to the public from failure of
facility components resulting from accidents or natural catastrophes,
how these events would affect reliability, and what procedures and
design features have been used to reduce potential hazards. Resource
Report 11 must:
(1) Describe measures proposed to protect the public from failure
of the proposed facilities (including coordination with local
agencies).
(2) Discuss hazards, the environmental impact, and service
interruptions which could reasonably
[[Page 26617]]
ensue from failure of the proposed facilities.
(3) Discuss design and operational measures to avoid or reduce
risk.
(4) Discuss contingency plans for maintaining service or reducing
downtime.
(5) Describe measures used to exclude the public from hazardous
areas. Discuss measures used to minimize problems arising from
malfunctions and accidents (with estimates of probability of
occurrence) and identify standard procedures for protecting services
and public safety during maintenance and breakdowns.
(n) Resource Report 12--PCB Contamination. This report is required
for applications involving the replacement, abandonment by removal, or
abandonment in place of pipeline facilities determined to have
polychlorinated biphenyls (PCBs) in excess of 50 ppm in pipeline
liquids. Resource Report 12 must:
(1) Provide a statement that activities would comply with an
approved EPA disposal permit, with the dates of issuance and expiration
specified, or with the requirements of the Toxic Substances Control
Act.
(2) For compressor station modifications on sites that have been
determined to have soils contaminated with PCBs, describe the status of
remediation efforts completed to date.
(o) Resource Report 13--Engineering and design material. This
report is required for construction of new liquefied natural gas (LNG)
facilities, or the recommissioning of existing LNG facilities. If the
recommissioned facility is existing and is not being replaced,
relocated, or significantly altered, resubmittal of information already
on file with the Commission is unnecessary. Resource Report 13 must:
(1) Provide a detailed plot plan showing the location of all major
components to be installed, including compression, pretreatment,
liquefaction, storage, transfer piping, vaporization, truck loading/
unloading, vent stacks, pumps, and auxiliary or appurtenant service
facilities.
(2) Provide a detailed layout of the fire protection system showing
the location of fire water pumps, piping, hydrants, hose reels, dry
chemical systems, high expansion foam systems, and auxiliary or
appurtenant service facilities.
(3) Provide a layout of the hazard detection system showing the
location of combustible-gas detectors, fire detectors, heat detectors,
smoke or combustion product detectors, and low temperature detectors.
Identify those detectors that activate automatic shutdowns and the
equipment that would shut down. Include all safety provisions
incorporated in the plant design, including automatic and manually
activated emergency shutdown systems.
(4) Provide a detailed layout of the spill containment system
showing the location of impoundments, sumps, subdikes, channels, and
water removal systems.
(5) Provide manufacturer's specifications, drawings, and literature
on the fail-safe shut-off valve for each loading area at a marine
terminal (if applicable).
(6) Provide a detailed layout of the fuel gas system showing all
taps with process components.
(7) Provide copies of company, engineering firm, or consultant
studies of a conceptual nature that show the engineering planning or
design approach to the construction of new facilities or plants.
(8) Provide engineering information on major process components
related to the first six items above, which include (as applicable)
function, capacity, type, manufacturer, drive system (horsepower,
voltage), operating pressure, and temperature.
(9) Provide manuals and construction drawings for LNG storage
tank(s).
(10) Provide up-to-date piping and instrumentation diagrams.
Include a description of the instrumentation and control philosophy,
type of instrumentation (pneumatic, electronic), use of computer
technology, and control room display and operation. Also, provide an
overall schematic diagram of the entire process flow system, including
maps, materials, and energy balances.
(11) Provide engineering information on the plant's electrical
power generation system, distribution system, emergency power system,
uninterruptible power system, and battery backup system.
(12) Identify of all codes and standards under which the plant (and
marine terminal, if applicable) will be designed, and any special
considerations or safety provisions that were applied to the design of
plant components.
(13) Provide a list of all permits or approvals from local, state,
Federal, or Native American groups or Indian agencies required prior to
and during construction of the plant, and the status of each, including
the date filed, the date issued, and any known obstacles to approval.
Include a description of data records required for submission to such
agencies and transcripts of any public hearings by such agencies. Also
provide copies of any correspondence relating to the actions by all, or
any, of these agencies regarding all required approvals.
(14) Identify how each applicable requirement will comply with 49
CFR part 193 and the National Fire Protection Association 59A LNG
Standards. For new facilities, the siting requirements of 49 CFR part
193, subpart B, must be given special attention. If applicable, vapor
dispersion calculations from LNG spills over water should also be
presented to ensure compliance with the U.S. Coast Guard's LNG
regulations in 33 CFR part 127.
(15) Provide seismic information specified in Data Requirements for
the Seismic Review of LNG facilities (NBSIR 84-2833, available from
FERC staff) for facilities that would be located in zone 2, 3, or 4 of
the Uniform Building Code Seismic Map of the United States.
53. New Sec. 380.13 is added to read as follows:
Sec. 380.13 Compliance with the Endangered Species Act.
(a) Definitions. For purposes of this section:
(1) Listed species and critical habitat have the same meaning as
provided in 50 CFR 402.02.
(2) Project area means any area subject to construction activities
(for example, material storage sites, temporary work areas, and new
access roads) necessary to install or abandon the facilities.
(b) Procedures for informal consultation.--(1) Designation of non-
Federal representative. The project sponsor is designated as the
Commission's non-Federal representative for purposes of informal
consultations with the U.S. Fish and Wildlife Service (FWS) and the
National Marine Fisheries Service (NMFS) under the Endangered Species
Act of 1973, as amended (ESA).
(2) Consultation requirement. (i) Prior to the filing of the
environmental report specified in Sec. 380.12, the project sponsor must
contact the appropriate regional or field office of the FWS or the
NMFS, or both if appropriate, to initiate informal consultations,
unless it is proceeding pursuant to a blanket clearance issued by the
FWS and/or NMFS which is less than 1 year old and the clearance does
not specify more frequent consultation.
(ii) If a blanket clearance is more than 1 year old or less than 1
year old and specifies more frequent consultations, or if the project
sponsor is not proceeding pursuant to a blanket clearance, the project
sponsor must request a list of
[[Page 26618]]
federally listed or proposed species and designated or proposed
critical habitat that may be present in the project area, or provide
the consulted agency with such a list for its concurrence.
(iii) The consulted agency will provide a species and critical
habitat list or concur with the species list provided within 30 days of
its receipt of the initial request. In the event that the consulted
agency does not provide this information within this time period, the
project sponsor may notify the Director of the Office of Pipeline
Regulation and continue with the remaining procedures of this section.
(3) End of informal consultation. (i) At any time during the
informal consultations, the consulted agency may determine or confirm:
(A) That no listed or proposed species, or designated or proposed
critical habitat, occurs in the project area; or
(B) That the project is not likely to adversely affect a listed
species or critical habitat;
(ii) If the consulted agency provides the determination or
confirmation described in paragraph (b)(3)(i) of this section, no
further consultation is required.
(4) Potential impact to proposed species. (i) If the consulted
agency, pursuant to informal consultations, initially determines that
any species proposed to be listed, or proposed critical habitat, occurs
in the project area, the project sponsor must confer with the consulted
agency on methods to avoid or reduce the potential impact.
(ii) The project sponsor shall include in its proposal, a
discussion of any mitigating measures recommended through the
consultation process.
(5) Continued informal consultations for listed species. (i) If the
consulted agency initially determines, pursuant to the informal
consultations, that a listed species or designated critical habitat may
occur in the project area, the project sponsor must continue informal
consultations with the consulted agency to determine if the proposed
project may affect the species or designated critical habitat. These
consultations may include discussions with experts (including experts
provided by the consulted agency), habitat identification, field
surveys, biological analyses, and the formulation of mitigation
measures. If the provided information indicates that the project is not
likely to adversely affect a listed species or critical habitat, the
consulting agency will provide a letter of concurrence which completes
informal consultation.
(ii) The project sponsor must prepare a Biological Assessment
unless the consulted agency indicates that the proposed project is not
likely to adversely affect a specific listed species or its designated
critical habitat. The Biological Assessment must contain the following
information for each species contained in the consulted agency's
species list:
(A) Life history and habitat requirements;
(B) Results of detailed surveys to determine if individuals,
populations, or suitable, unoccupied habitat exists in the proposed
project's area of effect;
(C) Potential impacts, both beneficial and negative, that could
result from the construction and operation of the proposed project, or
disturbance associated with the abandonment, if applicable; and
(D) Proposed mitigation that would eliminate or minimize these
potential impacts.
(iii) All surveys must be conducted by qualified biologists and
must use FWS and/or NMFS approved survey methodology. In addition, the
Biological Assessment must include the following information:
(A) Name(s) and qualifications of person(s) conducting the survey;
(B) Survey methodology;
(C) Date of survey(s); and
(D) Detailed and site-specific identification of size and location
of all areas surveyed.
(iv) The project sponsor must provide a draft Biological Assessment
directly to the environmental staff of the Office of Pipeline
Regulation for review and comment and/or submission to the consulted
agency. If the consulted agency fails to provide formal comments on the
Biological Assessment to the project sponsor within 30 days of its
receipt, as specified in 50 CFR 402.120, the project sponsor may notify
the Director, OPR, and follow the procedures in paragraph (c) of this
section.
(v) The consulted agency's comments on the Biological Assessment's
determination must be filed with the Commission.
(c) Notification to Director. In the event that the consulted
agency fails to respond to requests by the project sponsor under
paragraph (b) of this section, the project sponsor must notify the
Director of the Office of Pipeline Regulation. The notification must
include all information, reports, letters, and other correspondence
prepared pursuant to this section. The Director will determine whether:
(1) Additional informal consultation is required;
(2) Formal consultation must be initiated under paragraph (d) of
this section; or
(3) Construction may proceed.
(d) Procedures for formal consultation. (1) In the event that
formal consultation is required pursuant to paragraphs (b)(5)(v) or
(c)(2) of this section, the Commission staff will initiate formal
consultation with the FWS and/or NMFS, as appropriate, and will request
that the consulted agency designate a lead Regional Office, lead Field/
District Office, and Project Manager, as necessary, to facilitate the
formal consultation process. In addition, the Commission will designate
a contact for formal consultation purposes.
(2) During formal consultation, the consulted agency, the
Commission, and the project sponsor will coordinate and consult to
determine potential impacts and mitigation which can be implemented to
minimize impacts. The Commission and the consulted agency will schedule
coordination meetings and/or field visits as necessary.
(3) The formal consultation period will last no longer than 90
days, unless the consulted agency, the Commission, and project sponsor
mutually agree to an extension of this time period.
(4) The consulted agency will provide the Commission with a
Biological Opinion on the proposed project, as specified in 50 CFR
402.14(e), within 45 days of the completion of formal consultation.
54. New Sec. 380.14 is added to read as follows:
Sec. 380.14 Compliance with the National Historic Preservation Act.
(a) Section 106 of the National Historic Preservation Act, as
amended (16 U.S.C. 470(f)) (NHPA), requires the Commission take into
account the effect of a proposed project on any historic property and
to afford the Advisory Council on Historic Preservation (Council) an
opportunity to comment on projects if required under 36 CFR 800. The
project sponsor, as a non-Federal party, assists the Commission in
meeting its obligations under NHPA section 106 and the implementing
regulations at 36 CFR part 800 by following the procedures at
Sec. 380.12(f). The project sponsor may contact the Commission at any
time for assistance. The Commission will review the resultant filings.
(1) The Commission's NHPA section 106 responsibilities apply to
public and private lands, unless subject to the provisions of paragraph
(a)(2) of this section. The project sponsor will assist the Commission
in taking into account
[[Page 26619]]
the views of interested parties, Native Americans, and tribal leaders.
(2) If Federal or Tribal land is affected by a proposed project,
the project sponsor shall adhere to any requirements for cultural
resources studies of the applicable Federal land- managing agencies on
Federal lands and any tribal requirements on Tribal lands. The project
sponsor must identify, in Resource Report 4 filed with the application,
the status of cultural resources studies on Federal or Tribal lands, as
applicable.
(3) The project sponsor must consult with the SHPO(s) and THPOs, if
appropriate. If the SHPO or THPO declines to consult with the project
sponsor, the project sponsor shall not continue with consultations,
except as instructed by the Director of the Office of Pipeline
Regulation.
(4) If the project is covered by an agreement document among the
Commission, Council, SHPO(s), THPO(s), land-managing agencies, project
sponsors, and interested persons, as appropriate, then that agreement
will provide for compliance with NHPA section 106, as applicable.
(b) [Reserved]
55. New Sec. 380.15 is added to read as follows:
Sec. 380.15 Siting and maintenance requirements.
(a) Avoidance or minimization of effects. The siting, construction,
and maintenance of facilities shall be undertaken in a way that avoids
or minimizes effects on scenic, historic, wildlife, and recreational
values.
(b) Landowner consideration. The desires of landowners should be
taken into account in the planning, locating, clearing, and maintenance
of rights-of-way and the construction of facilities on their property,
so long as the result is consistent with applicable requirements of
law, including laws relating to land-use and any requirements imposed
by the Commission.
(c) Safety regulations. The requirements of this paragraph do not
affect a project sponsor's obligation to comply with safety regulations
of the U.S. Department of Transportation and recognized safe
engineering practices.
(d) Pipeline construction.
(1) The use, widening, or extension of existing rights-of-way must
be considered in locating proposed facilities.
(2) In locating proposed facilities, the project sponsor shall, to
the extent practicable, avoid places listed on, or eligible for listing
on, the National Register of Historic Places; natural landmarks listed
on the National Register of Natural Landmarks; officially designated
parks; wetlands; and scenic, recreational, and wildlife lands. If
rights-of-way must be routed near or through such places, attempts
should be made to minimize visibility from areas of public view and to
preserve the character and existing environment of the area.
(3) Rights-of-way should avoid forested areas and steep slopes
where practical.
(4) Rights-of-way clearing should be kept to the minimum width
necessary.
(5) In selecting a method to clear rights-of-way, soil stability
and protection of natural vegetation and adjacent resources should be
taken into account.
(6) Trees and vegetation cleared from rights-of-way in areas of
public view should be disposed of without undue delay.
(7) Remaining trees and shrubs should not be unnecessarily damaged.
(8) Long foreground views of cleared rights-of-way through wooded
areas that are visible from areas of public view should be avoided.
(9) Where practical, rights-of-way should avoid crossing hills and
other high points at their crests where the crossing is in a forested
area and the resulting notch is clearly visible in the foreground from
areas of public view.
(10) Screen plantings should be employed where rights-of-way enter
forested areas from a clearing and where the clearing is plainly
visible in the foreground from areas of public view.
(11) Temporary roads should be designed for proper drainage and
built to minimize soil erosion. Upon abandonment, the road area should
be restored and stabilized without undue delay.
(e) Right-of-way maintenance.
(1) Vegetation covers established on a right-of-way should be
properly maintained.
(2) Access and service roads should be maintained with proper
cover, water bars, and the proper slope to minimize soil erosion. They
should be jointly used with other utilities and land-management
agencies where practical.
(3) Chemical control of vegetation should not be used unless
authorized by the landowner or land-managing agency. When chemicals are
used for control of vegetation, they should be approved by EPA for such
use and used in conformance with all applicable regulations.
(f) Construction of aboveground facilities.
(1) Unobtrusive sites should be selected for the location of
aboveground facilities.
(2) Aboveground facilities should cover the minimum area
practicable.
(3) Noise potential should be considered in locating compressor
stations, or other aboveground facilities.
(4) The exterior of aboveground facilities should be harmonious
with the surroundings and other buildings in the area.
(5) The site of aboveground facilities which are visible from
nearby residences or public areas, should be planted in trees and
shrubs, or other appropriate landscaping and should be installed to
enhance the appearance of the facilities, consistent with operating
needs.
56. Appendix A to Part 380 is revised to read as follows:
Appendix A to Part 380--Minimum Filing Requirements for Environmental
Reports Under the Natural Gas Act.
BILLING CODE 6714-01-U
Environmental Reports Under the Natural Gas Act.
Resource Report 1--General Project Description
1. Provide a detailed description and location map of the project
facilities. (Sec. 380.12(c)(1)).
2. Describe any nonjurisdictional facilities that would be built in
association with the project. (Sec. 380.12(c)(2)).
3. Provide current original U.S. Geological Survey (USGS) 7.5-
minute-series topographic maps with mileposts showing the project
facilities; (Sec. 380.12(c)(3)).
4. Provide aerial images or photographs or alignment sheets based
on these sources with mileposts showing the project facilities;
(Sec. 380.12(c)(3)).
5. Provide plot/site plans of compressor stations showing the
location of the nearest noise-sensitive areas (NSA) within 1 mile.
(Sec. 380.12(c)(3,4)).
6. Describe construction and restoration methods.
(Sec. 380.12(c)(6)).
7. Identify the permits required for construction across surface
waters. (Sec. 380.12(c)(9)).
8. Provide the names and addresses of all landowners whose land
would be crossed by the project facilities. Include the names and
addresses of all residents adjacent to new or modified compressor
stations. (Sec. 380.12(c)(10)).
Resource Report 2--Water Use and Quality
1. Identify all perennial surface waterbodies crossed by the
proposed project and their water quality classification.
(Sec. 380.12(d)(1)).
[[Page 26620]]
2. Identify all waterbody crossings that may have contaminated
waters or sediments. (Sec. 380.12(d)(1)).
3. Identify watershed areas, designated surface water protection
areas, and sensitive waterbodies crossed by the proposed project.
(Sec. 380.12(d)(1)).
4. Provide a table (based on NWI maps if delineations have not been
done) identifying all wetlands, by milepost and length, crossed by the
project (including abandoned pipeline), and the total acreage and
acreage of each wetland type that would be affected by construction.
(Sec. 380.12(d)(1 & 4)).
5. Discuss construction and restoration methods proposed for
crossing wetlands, and compare them to staff's Wetland and Waterbody
Construction and Mitigation Procedures; (Sec. 380.12(d)(2)).
6. Describe the proposed waterbody construction, impact mitigation,
and restoration methods to be used to cross surface waters and compare
to the staff's Wetland and Waterbody Construction and Mitigation
Procedures. (Sec. 380.12(d)(2)).
7. Provide original National Wetlands Inventory (NWI) maps or the
appropriate state wetland maps, if NWI maps are not available, that
show all proposed facilities and include milepost locations for
proposed pipeline routes. (Sec. 380.12(d)(4)).
8. Identify all U.S. Environmental Protection Agency (EPA)- or
state- designated aquifers crossed. (Sec. 380.12(d)(9)).
Resource Report 3--Vegetation and Wildlife
1. Classify the fishery type of each surface waterbody that would
be crossed, including fisheries of special concern.
(Sec. 380.12(e)(1)).
2. Describe terrestrial and wetland wildlife and habitats that
would be affected by the project. (Sec. 380.12(e)(2)).
3. Describe the major vegetative cover types that would be crossed
and provide the acreage of each vegetative cover type that would be
affected by construction. (Sec. 380.12(e)(3)).
4. Describe the effects of construction and operation procedures on
the fishery resources and proposed mitigation measures.
(Sec. 380.12(e)(4)).
5. Evaluate the potential for short-term, long-term, and permanent
impact on the wildlife resources and state-listed endangered or
threatened species caused by construction and operation of the project
and proposed mitigation measures. (Sec. 380.12(e)(4)).
6. Identify all federally listed or proposed endangered or
threatened species that potentially occur in the vicinity of the
project and discussion results of consultations with other agencies.
(Sec. 380.12(e)(5)).
7. Describe any significant biological resources that would be
affected. Describe impact and any mitigation proposed to avoid or
minimize that impact. (Sec. 380.12(e)(4 & 6)).
Resource Report 4--Cultural Resources
See Sec. 380.14 and ``OPR's Guidelines for Reporting on Cultural
Resources Investigations'' for further guidance.
1. Initial cultural resources consultation and documentation, and
documentation of consultation with Native Americans.
(Sec. 380.12(f)(1)(ii) & (2)).
2. Overview/Survey Report(s). (Sec. 380.12(f)(1)(iii) & (2)).
Resource Report 5--Socioeconomics
1. For major aboveground facilities and major pipeline projects
that require an EIS, describe existing socioeconomic conditions within
the project area. (Sec. 380.12(g)(1)).
2. For major aboveground facilities, quantify impact on employment,
housing, local government services, local tax revenues, transportation,
and other relevant factors within the project area. (Sec. 380.12(g)(2-
6)).
Resource Report 6--Geological Resources
1. Identify the location (by milepost) of mineral resources and any
planned or active surface mines crossed by the proposed facilities.
(Sec. 380.12(h)(1 & 2)).
2. Identify any geologic hazards to the proposed facilities.
(Sec. 380.12(h)(2))
3. Discuss the need for and locations where blasting may be
necessary in order to construct the proposed facilities.
(Sec. 380.12(h)(3))
4. For LNG projects in seismic areas, the materials required by
``Data Requirements for the Seismic Review of LNG Facilities,''
NBSIR84-2833. (Sec. 380.12(h)(5))
5. For underground storage facilities, how drilling activity by
others within or adjacent to the facilities would be monitored, and how
old wells would be located and monitored within the facility
boundaries. (Sec. 380.12(h)(6))
Resource Report 7--Soils
1. Identify, describe, and group by milepost the soils affected by
the proposed pipeline and aboveground facilities. (Sec. 380.12(i)(1))
2. For aboveground facilities that would occupy sites over 5 acres,
determine the acreage of prime farmland soils that would be affected by
construction and operation. (Sec. 380.12(i)(2))
3. Describe, by milepost, potential impacts on soils.
(Sec. 380.12(i)(3,4))
4. Identify proposed mitigation to minimize impact on soils, and
compare with the staff's Upland Erosion Control, Revegetation, and
Maintenance Plan. (Sec. 380.12(i)(5))
Resource Report 8--Land Use, Recreation and Aesthetics
1. Classify and quantify land use affected by: (Sec. 380.12(j)(1))
a. Pipeline construction and permanent rights-of-way
(Sec. 380.12(j)(1));
b. Extra work/staging areas (Sec. 380.12(j)(1));
c. Access roads (Sec. 380.12(j)(1));
d. Pipe and contractor yards (Sec. 380.12(j)(1)); and
e. Aboveground facilities (Sec. 380.12(j)(1)).
2. Identify by milepost all locations where the pipeline right-of-
way would at least partially coincide with existing right-of-way, where
it would be adjacent to existing rights-of-way, and where it would be
outside of existing right-of-way. (Sec. 380.12(j)(1))
3. Provide detailed typical construction right-of-way cross-section
diagrams showing information such as widths and relative locations of
existing rights-of-way, new permanent right-of-way, and temporary
construction right-of-way. (Sec. 380.12(j)(1))
4. Summarize the total acreage of land affected by construction and
operation of the project. (Sec. 380.12(j)(1))
5. Identify by milepost all planned residential or commercial/
business development and the time frame for construction.
(Sec. 380.12(j)(3))
6. Identify by milepost special land uses (e.g., sugar maple
stands, specialty crops, natural areas, national and state forests,
conservation land, etc.). (Sec. 380.12(j)(4))
7. Identify by beginning milepost and length of crossing all land
administered by Federal, state, or local agencies, or private
conservation organizations. (Sec. 380.12(j)(4))
8. Identify by milepost all natural, recreational, or scenic areas,
and all registered natural landmarks crossed by the project.
(Sec. 380.12(j)(4 & 6))
9. Identify all facilities that would be within designated coastal
zone management areas. (Sec. 380.12(j)(4))
10. Identify by milepost all residences that would be within 50
feet of the construction right-of-way or extra work area.
(Sec. 380.12(j)(5))
11. Identify all designated or proposed candidate National or State
Wild and Scenic Rivers crossed by the project. (Sec. 380.12(j)(6))
12. Describe any measures to visually screen aboveground
facilities, such as compressor stations. (Sec. 380.12(j)(11))
13. Demonstrate that applications for rights-of-way or other
proposed land use
[[Page 26621]]
have been or soon will be filed with Federal land-managing agencies
with jurisdiction over land that would be affected by the project.
(Sec. 380.12(j)(12))
Resource Report 9--Air and Noise Quality
1. Describe existing air quality in the vicinity of the project.
(Sec. 380.12(k)(1))
2. Quantify the existing noise levels (day-night sound level
(Ldn) and other applicable noise parameters) at noise-
sensitive areas and at other areas covered by relevant state and local
noise ordinances. (Sec. 380.12(k)(2))
3. Quantify existing and proposed emissions of compressor
equipment, plus construction emissions, including nitrogen oxides
(NOX) and carbon monoxide (CO), and the basis for these
calculations. Summarize anticipated air quality impacts for the
project. (Sec. 380.12(k)(3))
4. Describe the existing and proposed compressor units at each
station where new, additional, or modified compression units are
proposed, including the manufacturer, model number, and horsepower of
the compressor units. (Sec. 380.12(k)(4))
5. Identify any nearby noise-sensitive area by distance and
direction from the proposed compressor unit building/enclosure.
(Sec. 380.12(k)(4))
6. Identify any applicable state or local noise regulations.
(Sec. 380.12(k)(4))
7. Calculate the noise impact at noise-sensitive areas of the
proposed compressor unit modifications or additions, specifying how the
impact was calculated, including manufacturer's data and proposed noise
control equipment. (Sec. 380.12(k)(4))
Resource Report 10--Alternatives
1. Address the ``no action'' alternative. (Sec. 380.12(l)(1))
2. For large projects, address the effect of energy conservation or
energy alternatives to the project. (Sec. 380.12(l)(1))
3. Identify system alternatives considered during the
identification of the project and provide the rationale for rejecting
each alternative. (Sec. 380.12(l)(1))
4. Identify major and minor route alternatives considered to avoid
impact on sensitive environmental areas (e.g., wetlands, parks, or
residences) and provide sufficient comparative data to justify the
selection of the proposed route. (Sec. 380.12(l)(3))
5. Identify alternative sites considered for the location of major
new aboveground facilities and provide sufficient comparative data to
justify the selection of the proposed site. (Sec. 380.12(l)(3))
Resource Report 11--Reliability and Safety
Describe how the project facilities would be designed, constructed,
operated, and maintained to minimize potential hazard to the public
from the failure of project components as a result of accidents or
natural catastrophes. (Sec. 380.12(m))
Resource Report 12--PCB Contamination
1. For projects involving the replacement or abandonment of
facilities determined to have PCBs, provide a statement that activities
would comply with an approved EPA disposal permit or with the
requirements of the TSCA. (Sec. 380.12(n)(1))
2. For compressor station modifications on sites that have been
determined to have soils contaminated with PCBs, describe the status of
remediation efforts completed to date. (Sec. 380.12(n)(2))
Resource Report 13--Additional Information Related to LNG Plants
Provide all the listed detailed engineering materials.
(Sec. 380.12(o))
Billing Code 6714-01-M
PART 385--RULES OF PRACTICE AND PROCEDURE
57. The authority citation for part 385 continues to read as
follows:
Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717z, 3301-3432; 16
U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352; 49
U.S.C. 60502; 49 App. U.S.C. 1085.
58. In Sec. 385.2001, paragraph (b)(3) is revised to read as
follows:
Sec. 385.2001 Filings (Rule 2001).
* * * * *
(b) * * *
(3) The Secretary, or the office director to whom the filing has
been referred, will send a letter of rejection with an indication of
the deficiencies in the filing and the reasons for rejection.
* * * * *
[FR Doc. 99-11247 Filed 5-13-99; 8:45 am]
BILLING CODE 6717-01-U