[Federal Register Volume 64, Number 98 (Friday, May 21, 1999)]
[Proposed Rules]
[Pages 27717-27730]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11215]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Parts 2, 153, 157, 380
[Docket No. RM98-17-000]
Landowner Notification, Expanded Categorical Exclusions, and
Other Environmental Filing Requirements; Notice of Proposed Rulemaking
April 28, 1999.
AGENCY: Federal Energy Regulatory Commission.
ACTION: Notice of Proposed Rulemaking.
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SUMMARY: The Federal Energy Regulatory Commission (Commission) is
proposing to amend its regulations under the Natural Gas Act (NGA) by
adding certain early landowner notification requirements that will
[[Page 27718]]
ensure that landowners who may be affected by a pipeline's proposal to
construct natural gas pipeline facilities have sufficient opportunity
to participate in the Commission's certificate process. The Commission
also proposes to amend certain areas of its regulations to provide
pipelines with greater flexibility and to further expedite the
certificate process, including expanding the list of activities
categorically excluded from the need for an environmental assessment in
section 380.4 of the Commission's regulations; (2) expanding the types
of events that allow pipelines to rearrange facilities under their
blanket construction certificate; and (3) allowing pipelines to drill
observation wells under their blanket construction certificate.
Finally, the Commission also proposes to require that pipelines
consult with the National Marine Fisheries Service concerning essential
fish habitat as required by regulations implementing the Magnuson-
Stevens Fishery Conservation and Management Act; and apply the Upland
Erosion Control, Revegetation and Maintenance Plan and the Wetland and
Waterbody Construction and Mitigation Procedures to activities
conducted under the pipeline's blanket construction certificate.
DATES: Comments are due June 21, 1999.
ADDRESSES: Send comments to: Office of the Secretary, Federal Energy
Regulatory Commission, 888 First Street, N.E., Washington, D.C. 20426.
FOR FURTHER INFORMATION CONTACT:
John S. Leiss, Office of Pipeline Regulation, Federal Energy Regulatory
Commission 888, First Street, N.E., Washington, D.C. 20426, (202) 208-
1106
Carolyn Van Der Jagt, Office of the General Counsel, Federal Energy
Regulatory Commission, 888 First Street, N.E., Washington, D.C. 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, N.E., Room 2A, Washington, D.C. 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, N.E., Washington, D.C. 20426.
I. Introduction
The Federal Energy Regulatory Commission (Commission) is proposing
to amend its regulations under the Natural Gas Act (NGA) by adding
certain early landowner notification requirements that will ensure that
landowners who may be affected by a pipeline's proposal to construct
natural gas pipeline facilities have sufficient opportunity to
participate in the Commission's certificate process. The Commission
also proposes to amend certain areas of its regulations to provide
pipelines with greater flexibility and to further expedite the
certificate process, including: (1) Expanding the list of activities
categorically excluded from the need for an environmental assessment in
section 380.4 of the Commission's regulations; (2) expanding the types
of events that allow pipelines to rearrange facilities under their
blanket construction certificate; and (3) allowing pipelines to drill
observation wells under their blanket construction certificate.
Finally, the Commission also proposes to: (1) require that
pipelines consult with the National Marine Fisheries Service concerning
essential fish habitat as required by regulations implementing the
Magnuson-Stevens Fishery Conservation and Management Act; and (2) apply
the Upland Erosion Control, Revegetation and Maintenance Plan and the
Wetland and Waterbody Construction and Mitigation Procedures to
activities conducted under the pipeline's blanket construction
certificate.
II. Background
As part of an ongoing review of its regulations, the Commission
continues to try to find ways to make its certificate process more
efficient and effective. Recently, it has become evident that
landowners that may be affected by a pipeline's proposal to construct
facilities want earlier and better notice of that pipeline's intent to
construct pipeline facilities on or near their property.
Under the Commission's current practice, landowners with property
on a proposed pipeline route, adjacent to compressor station or LNG
plant sites, or adjacent to existing fee-owned rights-of-way which
would be used for a proposed pipeline are generally notified by the
Commission as part of its environmental review of the proposed project.
Specifically, a pipeline seeking authorization to construct these
facilities provides the Commission with a list of names of the
landowners that would be affected by the project when, or shortly
after, it files the construction application. The Commission then
notifies the people on the pipeline's landowner list when it issues a
Notice of Intent to Prepare an Environmental Impact Statement (EIS) or
Environmental Assessment (EA) as required by the National Environmental
Policy Act of 1969 (NEPA).1
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\1\ Specifically, NEPA requires that federal agencies carefully
weigh the potential environmental impact of all their decisions and
consult with federal and state agencies and the public on serious
environmental questions.
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The Notice of Intent is mailed to the affected landowners after the
Commission has begun to process the pipeline's application and after
the Commission notices the application for the new facilities and,
usually, after the intervention period has run.2 The Notice
of Intent: (1) Summarizes the proposed project; (2) describes the
environmental review process; (3) identifies the environmental issues
raised by the project; and (4) explains how the public can participate
in the environmental review process. It also includes the text from the
Commission's pamphlet ``An interstate natural gas pipeline on my land?
What do I need to know?'' The Notice of Intent invites landowners to
participate in the Commission's environmental review process either by
becoming an intervenor for environmental purposes or by submitting
environmentally-related
[[Page 27719]]
comments on the pipeline's proposal. The purpose of the Notice of
Intent is to notify the affected landowners of the environmental review
of the project and only seeks comments on environmental issues.
Generally, the Notice of Intent does not provide the landowners with a
forum to raise non-environmental issues.
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\2\ Once the application is filed, the Commission issues a
notice of the filing, which is published in the Federal Register.
The notice appears approximately 10 days after the filing. The
notice specifies an intervention period, usually 21 days from the
notice date.
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Recently, landowners and other citizens have expressed increasing
interest in participating in the major pipeline projects, especially
the greenfield pipelines and pipeline expansions in heavily populated
areas.3 Generally, landowner groups contend that they are
uninformed and uneducated about their right to participate in the
certificate process and do not know where to go for information.
Further, they assert that they are notified too late in the process to
actively participate or have a say in the proceeding.
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\3\ Greenfield pipelines are pipeline proposals that will be
located in a new pipeline right-of-way for most of their length.
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Senator Fred Thompson and Representative Zach Wamp introduced
legislation (S. 1687 and H.R. 3319, respectively) that would require
that pipelines make a good faith effort to notify property owners from
whom they may seek to acquire a property interest through the exercise
of eminent domain. The proposed legislation required that a notice be
sent by certified mail, and on the same day the company files an
application.
On September 16, 1998, the Interstate Natural Gas Association of
America (INGAA) proposed that the Commission formalize notice
procedures using the proposed legislation as a starting point.
Generally, INGAA proposed that on the business day following the date
the pipeline files the application, the company would make a good faith
effort to notify, by certified mail, any person who is the owner of
record of real property that would be subject to the exercise of
eminent domain under the NGA.
On September 30, 1998, the Commission issued a notice on its intent
to hold a staff technical conference to address, among other things,
concerns regarding its present landowner notification policies.
Additionally, the notice invited interested persons to submit written
comments. The Commission received written comments from approximately
33 commenters. In their filed comments, the industry generally
supported the INGAA proposal or stated that no changes to the current
procedure were necessary. However, in their filed comments the
landowner groups contended that notice should be given before the
application is filed so they have a meaningful opportunity to
participate in the siting process.
The notice also raised other issues related to landowner
notification. One was how the pipeline would notify landowners and get
their consent if the Commission expanded its definition of eligible
facilities to include injection, withdrawal, and observation wells. The
Commission also was concerned about how the pipeline would acquire
landowner consent to use additional work space for replacement
facilities.
Another area raised in the September 30 notice was the Commission's
plan to designate residential areas as sensitive environmental areas as
defined in section 157.202(b)(11) of the Commission's regulations. The
Commission also sought comments on applying erosion control and stream
and wetland crossing mitigation measures to blanket construction
projects. Finally, the Commission mentioned that it might employ a
negotiated rulemaking procedure as an alternative to its traditional
rulemaking process in this proceeding.
On December 9, 1998, the Commission held the technical conference.
At the conference, the industry was represented by Duke Energy
Pipelines (Duke Energy), Enron Interstate Pipelines (Enron),
Transcontinental Gas Pipe Line Company (Transco), and INGAA. The
landowners were represented by the GASP Coalition, the Citizens
Advocates for Pipeline Safety, the Newton Citizens Committee, and the
Ohio-PA Landowners Association. Representatives for the Pipeline
Contractor's Association and Central Maine Power Company (Central
Maine) also participated. Several parties, including INGAA and GASP,
filed follow-up comments after the conference. The filed comments and
comments made at the technical conference are discussed below.
III. Discussion
A. Landowner Notification
1. Notification Process
a. Comments. Most parties agree that the Commission should modify
its current landowner notification policy. The Process Gas Consumers
Group, the American Iron and Steel Institute and the Georgia Industrial
Group (jointly Process Gas) contends that the Commission's current
notification policy and publication of the notice in the Federal
Register is sufficient to notify landowners. It argues that any new
requirements would create new procedural traps. Williston Basin
Interstate Pipeline Company (Williston Basin) also does not believe
that additional notification requirements are necessary. It argues that
the Commission should make additional notice requirements performance
based and only impose those requirements on problem pipelines. For
example, if the Commission receives no complaints, the pipeline should
be deemed to have performed in a satisfactory manner.
Generally, the industry posits that the landowners should be
notified after the application is filed, whereas, the landowner groups
want to be notified before the application is filed. This latter
position is also supported by the Public Service Commission of the
State of New York (NYPSC). The Iowa Utilities Board (Iowa Board)
suggests that the Commission consider requiring pre-filing
informational meetings.
The Iowa Board and NYPSC state that the pipelines should not
consider landowner notification as an onerous duty, but as an
opportunity to establish an early rapport with landowners and to obtain
information early in the process. They promote informal meetings with
the public before the pipeline files the application. They believe that
this process provides an opportunity for the pipeline to initiate
favorable relationships with landowners and to obtain input to refine
its petition and better determine the best location for the pipeline.
While many of the pipelines claim that they contact many of the
landowners early on during the surveying process, they do not want the
Commission to specifically make this a requirement.4
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\4\ Duke stated that it contacts individual landowners on
proposed rights-of-way early in the project and continues the
process of education by ``notification to public officials, open
house meetings, media notifications, agency meetings, newsletters,
landowner brochures and face-to-face survey permission contracts and
easement negotiations with landowners.'' See Duke's comments, at 3.
El Paso Energy Corporation (El Paso) notes that it generally
contacts landowners along the route in order to conduct required
surveys before a certificate application is filed. Williston Basin
states that it has its initial contact with landowners during the
survey process. Enron agrees pre-filing conferences are useful, but
contends that they do little to foster landowner relationships.
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As stated, the landowner groups want to be notified before the
application is filed. They contend, as does the NYPSC, that there is
significant benefit in obtaining early and ongoing public information
and participation. They state that the initial notification should be
early enough in the planning of a proposed line so that the potentially
affected landowners have the opportunity to participate fully in the
[[Page 27720]]
siting process. They contend that public involvement, including
identification of alternative locations, can help create a process
where issues are identified and addressed in cooperative fashion during
the project development. They envision that such cooperation can
facilitate analyses and the development of environmental reports.
The landowner groups and NYPSC argue that lack of notice to
landowners can generate significant delays. They claim that
notification at time of application is too late. They assert that by
the time the application is filed many decisions may have already
progressed beyond the point of no return. Further, property owners do
not have access to expertise to file timely motions to intervene to
protect their interest. Moreover, even timely intervention is too late
if lines have already been drawn on a filed map and costly resources
committed by the applicant to a particular route.
In response, the pipelines contend that it is confusing and
impractical to formally notify all potentially affected landowners
prior to filing. They also argue that formal notification in advance of
filing creates a threatening environment and would prematurely narrow
the window of negotiation. Finally, they assert that inviting
landowners to collaborate with the pipeline to determine a proposed
route in advance of filing a certificate application would only pit
landowner against landowner. They argue that it is the pipeline's
responsibility to choose the route.
As stated, INGAA generally proposes to send notification by
certified mail on the next business day after the application is filed.
It states that requiring the notification to be sent on the next
business day will allow the pipeline to include the project's docket
number in the notification. El Paso, on the other hand, contends that
one day after filing is not reasonable. It argues that it would be
impossible to get the docket number, incorporate it in a letter,
assemble a landowner package, and effectuate mailing all in one day. It
states that such a procedure would be labor intensive and a significant
administrative burden. It also asserts that certified mailing imposes
additional costs on the pipeline. It recommends that the Commission
require notice within five business days if the docket number is
provided on the day of filing. Williston Basin states that although it
has its initial contact during the survey process, the Commission
should allow the pipelines the option to either deliver the notice by
hand or by the mail either before the application is filed or up to
three business days after filing.5 It contends that
notification by mail is not conducive to the continuation of good
relationships. It believes personal contact is better.
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\5\ In a letter to the Chairman of the Commission concerning the
INGAA proposal, Senator Thompson supports the provision of the INGAA
proposal that the landowners be notified after the application is
filed. He states, ``* * * it is absolutely critical not only that
the landowners receive this information, but that they receive it in
a timely manner * * *''
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As stated, INGAA proposes to notify the landowners by certified
mail. Great Lakes objects to sending the notice by certified mail
because it could delay receipt and could be unduly burdensome. It
contends that many landowners may not be able to accept delivery and
that certified mail creates needless anxiety. It recommends the
Commission only require that the company provide an affidavit signed by
an authorized representative of the company stating that it made a good
faith effort to provide notice to all owners of record by regular mail.
b. Commission Response. We agree with NYPSC and the Iowa Board that
an early dialog and personal contact between the pipeline and the
community and landowners, perhaps in pre-filing informational meetings,
would promote more favorable relationships between the pipelines and
the potentially affected landowners. As stated, many of the pipelines
stated that they do contact landowners prior to filing a construction
application. It is in the pipeline's best interest to attempt to
involve the public early on in the process by seeking their input
before determining the exact route of the proposed pipeline. As the
Iowa Board points out, pre-filing meetings with the potentially
affected landowners provides the pipelines with valuable information
``from persons with knowledge of the route area which may impact
routing or design.'' 6
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\6\ Iowa Board's comments, at 4.
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Further, as stated, in Docket No. RM98-9-000, the more thorough and
the more complete an application is when it is filed, the more
expeditiously the Commission can process that application. Earlier
landowner participation could result in a more definitively defined
route. Specifically, the Commission experiences significant delays in
processing a certificate application because of the time needed to
address and resolve numerous landowner concerns about the placement of
the pipeline on their property. If the pipeline could resolve these
issues prior to filing the application, the Commission could process
the application more expediently.
A recent study conducted by Florida Gas Transmission Company
(Florida Gas) 7 stated that over half the people interviewed
suggested that Florida Gas:
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\7\ The executive summary of the study is located on Florida
Gas' home page at http://www.fgt.enron.com/mmexecutivesummary.doc.
Hold regular public meetings before and during construction to allow
citizens to participate in dialogue about the project, to ask
questions and to provide input to the route selection. * * * Many
cautioned that communications must be honest and open. They said the
company must not be too ``aggressive'' or ``pushy'' but, instead, to
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take the time to build public support up-front.
Further, at the December 9 conference, representatives from Duke and
Enron stated that their companies frequently contact landowners during
the initial planning stage with beneficial results.8
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\8\ Both the Duke and Enron representatives stated that they
contact potential landowners when they are conducting initial
environmental surveys before the application is filed with the
Commission.
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While the Commission encourages pipelines to hold pre-filing
meetings, it does not believe it is necessary to mandate pre-filing
meetings at this time. This is especially true given the indications
that some pipelines are attempting more dialogue early on with
communities and landowners. However, we invite public comment on
whether the Commission should have a more formal (structured) pre-
filing public notification requirement.
Therefore, in accord with INGAA's proposal and the aforementioned
proposed legislation, the Commission proposes new sections 153.3,
157.6(d), and 157.103 to require that for all section 7 projects
pipeline companies notify all affected landowners of record from the
most recent tax rolls by certified or first class mail within three (3)
business days following the date they file their application with the
Commission. The pipeline should file an affidavit with the
Environmental Resource Report 1 as required in proposed section
380.12(c)(10) certifying that the pipeline will notify all affected
landowners as required in proposed section 157.6(d).
As stated, the Commission currently mails the Notice of Intent to
the people on the pipeline's list of potential landowners. Many of the
notices are returned as undeliverable. Therefore, as part of the
Commission's landowner notification procedure we propose in section
157.6(d)(4) to require that the pipelines make a good-faith effort to
determine the correct address for any returned notices and to send
notices to the corrected addresses. The pipeline
[[Page 27721]]
also would be required to file an updated landowner list with the
corrected addresses within 30 days of filing the application as
proposed in section 157.6(d)(5). We believe that it will benefit the
pipeline to attempt to obtain the correct addresses earlier on in the
process. The pipeline will need to have accurate addresses for the
necessary landowners to obtain the easements for the project.
Therefore, determining the proper address sooner as opposed to later
will alleviate any potential delay in obtaining the necessary
easements.
As stated, the landowner groups contend that notification after the
application is too late because the route has already been determined.
We disagree. Although we do require that the pipeline file for the
route it proposes to use, the pipeline route frequently is modified
during the certificate process. As discussed at the December 9
conference, pipelines do modify their proposal as a result of
negotiations with landowners. Additionally, the Commission frequently
makes route modifications to accommodate specific landowner or other
environmental concerns.
Finally, in section 380.12(c)(5), the Commission is proposing to
require that pipelines consult with landowners prior to abandoning
facilities and the associated right-of-way or easement to determine if
the landowners would prefer to have the facilities removed from their
property. The pipeline, in consultation with the landowner, should
determine if the pipeline should be abandoned in place or removed. If
it determines that it is not practical to honor any requests to remove
facilities, it needs to explain why in Resource Report 1.
We propose this requirement because we believe the landowner's
opinion should be actively sought in cases where the pipeline is
relinquishing all rights to the land it has obtained temporary use of
from the landowner. As the pipeline may have no responsibility for the
facilities left on such property, we should know whether the landowner
would like the land back the way the pipeline found it. We are not
requiring the pipeline to automatically agree to the landowner's
wishes, because there may be valid reasons to leave the facility in the
ground.
2. Affected Landowners
a. Comments. INGAA proposes that the pipeline make a good faith
effort to notify any person who is the owner of record of real property
that may be subject to eminent domain as a result of the project. El
Paso states that the Commission should not require that the pipelines
do a full title search. INGAA argues that the Commission's ``affected
public'' standard is vague and difficult to define. It contends that it
might be interpreted to require that the pipeline provide notice to
competing pipelines before the application is filed. It recommends that
the ``affected landowners'' be defined as ``the individual noted in the
most recent county tax records as receiving the tax notice for property
that may be subject to eminent domain as a result of approval of the
certificate application.'' It states that only landowners directly
impacted by either the permanent right-of-way or temporary work spaces
should be notified.
Landowner groups recommend that various persons and groups be
notified, including the entire community, public officials, landowners,
abutters,9 and local newspapers. Some recommend that all
landowners directly affected and nearby owners of land with property
lines within one half a mile radius of the pipeline and one mile for
strictly agricultural areas be included. Others recommend that the
landowners or residents located within 220 yards of proposed right-of-
way or all landowners who share common land within 220 yards of
proposed right-of-way be notified.
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\9\ Abutters are owners of properties which share a common
boundary with the facility site or the right-of-way.
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NYPSC requests that the pipelines provide notice to potential
properties that may be affected directly or indirectly by the project.
For example, it recommends that the pipeline notify owners of property
adjacent to or within the range of influence of aboveground or noise
producing equipment such as compressor stations, blow-down valves, pig
launchers or similar facilities. It also recommends that notice be
given to nearby or adjacent property owners where construction will
introduce significant visual elements or remove visual buffers. Where
the route is uncertain, the Commission should consider notice to all
owners of record of potentially-affected property.
Senator Thompson's legislation provided for a: ``good faith effort
to provide notice by certified mail to any person who is the owner of
record of any interest in property which may be subject to the exercise
of eminent domain under [the NGA].''
b. Commission Response. In section 157.6(d)(2), the Commission
proposes to define affected landowners to include owners of: (1)
Property directly affected by the proposed activity, including all
property subject to the right-of-way and temporary work space; (2)
property abutting an existing right-of-way (owned in fee by a utility)
in which the facilities would be constructed; (3) property abutting a
compressor or LNG facility; or (4) property over new storage fields or
expansion of storage fields and any applicable buffer zone.
We believe that these properties potentially could be significantly
impacted by the proposed pipeline projects. Property owners whose
property abuts existing rights-of-way should be notified because they
may be affected and the Commission would like their input. Property
owners abutting a compressor or LNG facility should be notified for the
same reason. Finally, property owners over new or expanded storage
fields or in buffer zones for these areas should be notified because
their property rights may be affected, natural gas may be stored under
their property, and facilities might ultimately be constructed on their
property.
We note that the Commission will continue to notify state and local
government agencies and representative, and additional landowners on a
case-by-case basis as necessary as part of its environmental review
when the Notice of Intent is issued. Further, the proposed regulations
are only a minimum requirement and the pipelines and the Commission can
notify any additional landowners as necessary.
3. Notification Contents
a. Comments. Senator Thompson's letter to the Commission in
response to INGAA's proposal stated that the rulemaking should:
Include a specific and conspicuous description of the rights of
property owners to participate in any proceeding relating to the
granting of eminent domain authority and a specific and conspicuous
statement of who the property owners may contact at the appropriate
federal agency relating to the proceeding.
Other recommendations made by others for information that should be
in the notice, included: (1) Information about the pipeline company;
(2) a general description of the project, its purpose, and its proposed
timetable; (3) when the pipeline intends to file the application; (4)
up to date information on the proposed route,10 construction
process and timing, and the type of easement sought; (5) an explanation
of
[[Page 27722]]
the pipeline construction process, including methods and restoration
plans; (6) an explanation of the Commission's certificate process,
including the rights of landowners to file comments or intervene; (7)
details on how to file as an intervening party, an appropriate list of
agency contacts and principal parties involved (including pipeline
company officials), including phone numbers, addresses, and web
addresses, and applicable regulations; (8) a statement that points out
that the route is in a preliminary stage and is subject to revisions
and adjustments; (9) an explanation of the easement rights the pipeline
company will seek to acquire for the project; (10) an explanation about
how the company will pay for damages; (11) the Commission's pamphlet
``An interstate natural gas pipeline on my land? What do I need to
know?''; (12) a full copy of the application; and (13) an explanation
of who the project would benefit and a justification of the end use.
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\10\ Including a map of the route. For large projects there
should be a map showing the entire route, and another map showing
the landowner's local area (such as the county).
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b. Commission Response. The Commission proposes that the notice
should include: (1) The docket number of the filing; (2) a detailed
description of the proposed facilities including specific details of
their location, the purpose of the project, and the timing of the
project; (3) a description of the applicant; (4) the name of specific
contacts at the pipeline where the landowner can obtain additional
information about the project; and (5) a location where the applicant
has made copies of the application available.11
Additionally, the notice should either include map(s) of the project or
information where detailed map(s) of the project can be viewed or
obtained. The pipeline contact should be knowledgeable about the
project and should be able to answer specific questions concerning the
project.
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\11\ In new section 157.10, promulgated in RM98-9-000, the
pipelines are required to make complete copies of the application
available in each county in the project area.
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The notice should also include a copy of the Commission's pamphlet
``An interstate natural gas pipeline on my land? What do I need to
know?''. The pamphlet generally explains the Commission's certificate
process and addresses the basic concerns of landowners. It includes
information on how to get a copy of the pipeline's application and how
to participate in the proceeding. It also includes general information
on pipeline rights-of-way including, among other things: (1) how the
pipeline obtains a right-of-way; (2) the size of the right-of-way and
how it is maintained; and (3) building on the right-of-way. The
pamphlet explains the responsibilities of the pipeline company. It also
discusses safety and environmental issues. Finally, the pamphlet lists
the phone number of the Commission's Office of External Affairs which
the landowner can contact if there are further questions concerning the
certificate process.
B. Landowner Notification Under Sections 157.202 and 2.55 of the
Commission's Regulations
In the September 30 notice, the Commission stated that it is
considering changes to sections 157.202 and 2.55 of its regulations.
Specifically, under section 157.202(b)(2) the Commission is considering
expanding the definition of eligible facilities to include injection,
withdrawal, and observation wells. Under section 2.55, it is
considering allowing the use of additional work space for replacement
facilities. However, under both sections the Commission stated that it
was concerned about how the pipeline would obtain the landowner's
consent before beginning construction.
In general, the landowner groups state that the pipeline should
notify the landowners, via certified mail, to obtain their consent any
time they plan to enter on the property even if the pipeline has a
valid easement. The pipelines generally believe that any additional
Commission regulations in this area are unnecessary. They contend that
the pipelines must have the necessary property rights before engaging
in any construction activities on the landowner's property.
Prior to using any land for any work, the pipelines state that they
must have an easement or property rights to use the land. They assert
that the agreements with the landowner would: (1) Govern the pipeline's
use of the property; (2) determine what type of notice is required; and
(3) would detail any compensation that may be due the property owner.
If the right to use the property is not controlled by an easement
agreement, the pipelines contend that they would have to acquire the
appropriate property rights or consent from the landowner prior to
commencing any project under automatic authority in order to avoid
claims of criminal and trespass charges and to maintain good working
relationships with the landowners. Therefore, the pipelines believe
that the Commission should provide flexibility to allow each pipeline
to implement notification of landowners in a manner best suited to its
own landowner situations. They argue the Commission should respect the
bargains the pipelines have already negotiated and obtained from the
landowners and not impose any additional requirements. Finally, they
argue that there is no forum under the blanket certificate where the
landowner could raise issues.12
---------------------------------------------------------------------------
\12\ However, we note that the suggested changes were to require
landowner notification under these sections, not to notify the
Commission.
---------------------------------------------------------------------------
b. Commission Response. As stated in the September 30 notice, the
Commission stated that it was considering expanding the definition of
eligible facilities under section 157.202(b) of the regulations to
include injection, withdrawal, and observation wells. Upon
reconsideration of this issue, the Commission has determined that it is
not appropriate for the pipeline to construct new injection and
withdrawal wells under its blanket certificate. Such activity would
expand upon the authorization granted in the original certificate by
increasing the capacity and deliverability of the storage field. We
believe such activity is beyond the original intent of the blanket
certificate which was to ``enable pipelines to construct relatively
minor facilities and undertake relatively routine services without the
burden of a case-specific determination.'' 13
---------------------------------------------------------------------------
\13\ Interstate Pipeline Certificates for Routine Transactions,
Order No. 234-A, 47 FR 38,871 (September 3, 1982) FERC Stats. and
Regs. Regulation Preambles 1982-1985 para. 30,389, at 30,258 (1982).
---------------------------------------------------------------------------
However, we do propose to allow the pipelines to drill observation
wells under their blanket certificate. Observation wells generally are
needed for the pipelines to adequately monitor their storage fields.
Further, they do not change the characteristics of the storage fields
and do not result in any significant changes to the underlying
certificate authorization. Accordingly, we propose to add a sentence to
section 157.202(b)(2)(i) specifically including observation wells as
eligible facilities.
We also believe, upon further consideration, that it is premature
for the Commission to address expanding the allowed area for additional
workspace under section 2.55. Section 2.55 exempts certain activities
from NGA section 7 jurisdiction. Acquiring additional land for
construction activities is a section 7 activity and, therefore, does
not qualify for the section 2.55 exemption.
While we do not intend to expand the definition of eligible
facilities to include injection or withdrawal wells or to allow
additional work space under section 2.55, we agree with the landowners'
request that they be notified of construction to be performed
[[Page 27723]]
under these sections. Accordingly, the Commission intends to add a
landowner notification requirement for construction activities
conducted under section 2.55 and Subpart F of Part 157 of the
Commission's regulations. Under proposed sections 2.55(b) (1)(iv) and
157.203(d)(1), the pipeline will have to notify the affected landowner
30 days prior to commencing construction. The notification should
include: (1) a brief description of the facilities to be constructed/
replaced and the effect the construction activity will have on the
landowner's property; (2) the name and phone number of a company
representative that is knowledgeable about the project; and (3) a
description of the Commission's Enforcement Hotline procedures
explained in section 1b.21 of the Commission's regulations and the
Enforcement Hotline phone number.
In the event the landowners have further questions concerning the
project, they can contact the company representative for more details.
If the landowners need further information concerning the Commission's
role in these types of projects, they can contact the Commission's
enforcement staff.
The Commission proposes the similar requirements in section
157.203(d)(2) for prior notice filings. Except under 157.203(d)(2), we
propose to require that the pipeline notify the affected landowner
within three (3) business days after filing the prior notice
application with the Commission and to include the docket number in the
notice. We also propose that the include the following paragraph in the
notice:
This project is being proposed under the Commission's prior notice
requirements of its blanket certificate program. Under the
Commission's regulations, you have the right to protest this project
within 45 days of the date the Commission issues a notice of the
pipeline's filing. If you file a protest, you should include the
docket number listed in this letter and provide the specific reasons
for your protest. The protest should be mailed to to the Secretary
of the Federal Energy Regulatory Commission, 888 First St., N.E.,
Room 1A, Washington, DC 20426. A copy of the protest should be
mailed to the pipeline at [pipeline address]. If you have any
questions concerning these procedures you can call the Commission's
Office of External Affairs at (202) 208-1088.
We note that requiring that the pipeline inform the landowners of their
right to protest a prior notice filing when the pipeline constructs
facilities under its blanket certificate resolves the Commission's
concerns over adding residential areas to its definition of sensitive
environmental areas. Accordingly, we do not believe it is necessary to
include residential areas in the list of sensitive environmental areas
at this time.
C. Mitigation Measures for Blanket Certificates
1. Comments
The Commission also requested comments on the need to apply the
same erosion control and stream and wetland crossing mitigation
measures to blanket projects as are routinely used in the regular
certificate process. Currently, there are no such mitigation measures
imposed on blanket construction projects, although the impacts are
similar to those encountered in the traditional 7(c) projects. The
Commission needs to ensure that the pipelines are following such
mitigation measures.
Generally, the pipelines do not object to the Commission's
proposal. However, they recommend that the Commission view the
mitigation measures as guidelines and not mandate them in all
instances. They contend that the Commission should allow the pipelines
the flexibility to deviate from the guidelines as appropriate.
National Fuel states that there are problems with the Commission's
measures and that the pipelines frequently find it necessary to seek
deviations from certain measures to meet the recommendations of state
or local agencies or implement appropriate site specific construction
procedures.
2. Commission Response
In fulfilling its mandate under NEPA, the Commission routinely
requires that pipeline facilities constructed under case-specific NGA
section 7 certificates follow some type of erosion control and stream
and wetland crossing mitigation measures. We believe that to apply NEPA
consistently the Commission should require the same measures be applied
to pipeline facilities constructed under the pipeline's blanket
certificate. Therefore, we propose to add section 157.206(b)(3)(iv) to
the regulations to require that, unless it gets a variance, the
pipelines constructing facilities under their blanket certificates
adhere to the Commission staff's current ``Upland Erosion Control,
Revegetation and Maintenance Plan'' (Plan) and ``Wetland and Waterbody
Construction and Mitigation Procedures'' (Procedures). The documents
are available on the Commission's Internet home page or from the
Commission's staff.
If the pipelines cannot follow the mitigation measures for a
particular project or if an agency with responsibility for protecting
the relevant resource (soil, wetland, or waterbodies) specifies a
measure that conflicts with a measure in the Plan or Procedures, a
variance can be obtained. In either case, an alternative measure
specified in writing by the appropriate agency may be used.
Alternatively, the pipeline can apply to the Director of the Office of
Pipeline Regulation to request a waiver of the mitigation measures or
permission to apply alternative measures.
D. Magnuson Act
The Magnuson Act requires all Federal agencies to consult with the
National Marine Fisheries Service on the effects that their activities
may have on ``essential fish habitat.'' The National Marine Fisheries
Service's regulations at Chapter 50 Part 600 of the Code of Federal
Regulations describe the process that should be followed. We are
currently discussing the details of how the Commission can best comply
with this act in the long-term, but in the interim, we will simply
state that the requirements of this act are important for the companies
to consider at the same time they address Endangered Species Act
considerations. Companies should be contacting the National Marine
Fisheries Service to address what level of consultation is required for
their project for appropriate consideration of ``essential fish
habitat.'' Accordingly, we propose to add references to the Magnuson
Act in both the blanket certificate regulations, at section
157.206(b)(2)(xii), and for case-specific NGA section 7 filings, at
section 380.12(e)(5), requiring that pipelines consult with the
National Marine Fisheries Service with respect to ``essential fish
habitat''.
E. Categorical Exclusions
Section 380.4 of the Commission's regulations lists projects or
actions that the Commission has determined normally do not have a
significant environmental impact and are, therefore, categorically
excluded from the need for an Environmental Assessment. The Commission
proposes to add several new categories to the list, including: (1)
Abandonment of facilities by sale that only involve minor or no ground
disturbance to disconnect the facilities from the system (proposed
section 380.4(a)(31)); (2) conversion of facilities from use under the
Natural Gas Policy Act to use under the NGA (proposed section
380.4(a)(32)); (3) construction or abandonment of facilities conducted
entirely in Federal offshore waters which has been approved by the
Minerals Management Service and the Corps of Engineers, as necessary
(proposed section
[[Page 27724]]
380.4(a)(33)); (4) abandonment or construction of facilities on an
existing offshore platform (proposed section 380.4(a)(34)); (5)
abandonment, construction, or replacement of a facility (other than
compression) solely within an existing building within a natural gas
facility (other than LNG facilities), so long as it does not increase
the noise or air emissions from the facility, as a whole (proposed
section 380.4(a)(35)); and (6) conversion of compression to standby use
as long as the compressor is not moved, or abandonment of compression
as long as the compressor station remains in operation (proposed
section 380.4(a)(36)).
Proposed sections 380.4(a)(31) and (32) involve abandonments or
conversions that, at most, involve disturbance in small areas within
existing rights-of-way to connect or disconnect existing pipelines.
Proposed section 380.4(a)(34) has no effect on the natural environment
with the exception of air and noise emissions if compression is
involved. Given the fact that these emissions would occur offshore on
existing platforms which are isolated and already contain similar
activities, we believe there is no significant impact associated with
this type of activity.
In section 380.4(a)(33) we are proposing to require that the
company receive pre-approval from the Minerals Management Service and
the Corps of Engineers that have primary jurisdiction over the
construction, operation, and removal of offshore facilities. These
Federal agencies have their own procedures for complying with NEPA for
the impact potentially involved with these projects. Therefore, we
believe there is no reason for the Commission to conduct its own
environmental analysis, or to verify that the other agencies did such
an analysis.
Proposed section 380.4(a)(35) deals with activities taking place
solely within existing structures. The only potential impacts to the
environment under this type of activity would be air and noise
emissions. Since we propose to require that there be no increase in
either type of emission, the only potential is for a reduction and,
therefore, an improvement in the natural environment. We do not believe
any purpose would be served in conducting an environmental analysis for
this kind of activity.
Proposed section 380.4(a)(36) is similar to proposed section
380.4(a)(35). The conversion of compression to standby can only reduce
the amount of air and noise emissions from the station. The change to
air and noise emissions is a positive effect--the same as it is for the
previous category. Abandonment of some of the compression at a station
which remains in operation may result in ground disturbance within the
compressor station site, but this area was disturbed similarly when the
facility was first installed. Therefore, it requires no further
Commission analysis.
F. Miscellaneous Rearrangement of Facilities
In the comments filed in Docket No. RM98-9-000, several parties
requested that the Commission clarify that miscellaneous rearrangement
of facilities under section 157.202(b)(6) of the Commission's
regulations includes replacement facilities needed as a result of
encroachment on the pipeline because of residential, commercial, or
industrial development. Because of the landowner notification issue,
the Commission deferred addressing that issue to this proceeding.
Since this rulemaking proposes to require the company to notify
landowners of their intent to conduct the rearrangement activity, the
landowners would be given the opportunity to express any concerns. This
satisfies our landowner participation concern. Accordingly, we propose
to add encroachment to section 157.202(b)(6) as an appropriate reason
to use the blanket certificate for miscellaneous rearrangement of
facilities.
G. Other Issues Raised
1. Special Intervention Status
Many landowner groups claim that the Commission's current
intervention process is cost prohibitive and that it deters landowner
participation. They request that the Commission streamline its process
to accommodate landowners. Specifically, they request that the
Commission allow landowners to file one copy of their comment/protest
with the Commission and one copy with the company. Also, one landowner
recommended that town governments should be viewed as intervenors for
citizens and/or that town governments should be viewed automatically as
parties.
Under section 385.2010 of the Commission's regulations an
intervenor in a proceeding before the Commission must serve a copy of
its filing on all parties on the official service list. However, under
section 385.101(e) of the Commission's regulations, the Commission may
waive a rule for good cause. Parties that have difficulty participating
in the proceeding for whatever reason may request a waiver of the
Commission's service rule.
2. Depositories of Filing Information
One landowner also requests that the Commission set up depositories
where materials are readily available to the general public. In Docket
No. RM98-9-000, the Commission intends to allow a limited waiver of the
service rules for the filing of voluminous material or difficult to
reproduce material. Specifically, the Commission determined that these
filings do not need to be served on all parties unless they
specifically request a copy. Instead, the Commission is requiring that
the pipeline put complete copies of those filings in depositories along
the route of the pipeline for public inspection. In addition, new
section 157.10, promulgated in RM98-9-000, requires that pipelines make
complete copies of the application available in each county in the
project area. Finally, all documents filed with the Commission are
available on the Commission's Internet home page. Increasingly, people
have access to the Internet either in their homes or at the local
libraries. Therefore, we believe that the information filed in a
certificate proceeding under the Commission's current regulations (as
amended in Docket No. RM98-9-000) is sufficiently available to the
participating parties.
3. Inspectors of Construction Sites/Pipeline Safety
a. Comments. Central Maine Power Company (Central Maine) states
that the Commission presently has no oversight of the actual
construction process. It contends that the pipeline construction crews
repeatedly violate OSHA clearances and minimum work space requirements
when working near power lines. It urges the Commission to modify its
regulations so that the safety and electric system reliability concerns
are fully addressed throughout the certificate process, and that
certificate orders explicitly require compliance with safety
requirements with the same degree of specificity as already required
for environmental conditions. It believes that the Commission has an
obligation to devote necessary resources to insure that the pipeline
construction it authorizes does not endanger the public and is not
adverse to the public interest in reliable electric service. It
requests that the Commission allocate resources to expand substantially
the scope of its post-certificate monitoring of the pipeline
construction process. Several of the landowner groups also maintain
that the Commission should have
[[Page 27725]]
inspectors assigned locally to monitor construction sites.
b. Commission Response. The Commission does, in fact, conduct
oversight inspections of the construction process. As part of the
environmental conditions imposed in a certificate proceeding, the
Commission requires that the pipeline company hire environmental
inspectors to make sure that the environmental conditions of the
certificate, including any proposed mitigation, are appropriately
applied. In the event landowners have questions or problems during the
construction phase or after the facilities are built, they can call the
Commission's enforcement staff. We believe these measures allow the
Commission to ensure compliance with our environmental conditions.
Central Maine is concerned about our pipeline siting regulations
and the construction process. These concerns are outside the scope of
this rulemaking, and the safety concerns raised by Central Maine are
generally under the purview of the Occupational Safety and Health
Administration and the Department of Transportation. While we do favor
the use of existing corridors when appropriate, we recognize that
cooperation between the companies involved and careful construction
practices are key to success.
During our environmental review process we attempt to determine the
feasibility of the joint use of rights-of-way and the availability of
adequate spacing for a proposed project. We obtain input from both
companies before requiring joint use. As stated, we conduct inspections
during construction. In the event that trouble arises during the
construction phase, we will take steps to avoid inappropriate risks to
other utilities or to the public.
4. Eminent Domain
Some of the landowner groups state that in a deregulated industry
in which market forces are allowed to determine whether pipelines are
constructed, the use of eminent domain to enable construction and
operation of natural gas facilities on the private property is
inappropriate. They state that landowners become largely uncompensated
business partners who receive only a token payment for an easement.
They argue that market demand is not the same as public need. They
believe that companies in profit making businesses that use other
people's properties should be required to acquire that property in the
marketplace. They urge the Commission to require a pipeline to acquire
a large majority of easements through negotiations before they can
seize the remaining property. They claim that the property owners'
compensation is offset by the court costs.
The landowner groups assert that the pipeline should be required to
negotiate a business deal with landowners instead of relying on the
right of eminent domain. They contend that landowners should have the
option of being paid royalties for use of their land.
Under the NGA, if the Commission finds that a proposed project is
in the public convenience and necessity, the pipeline has the right to
acquire the property for that project by eminent domain. The pipeline's
right to eminent domain is not optional. Further, case law suggests
that the pipeline cannot waive its right to eminent
domain.14 It is a statutory requirement imposed by Congress.
The Commission cannot change or modify statutory requirements.
---------------------------------------------------------------------------
\14\ See Georgia v. City of Chattanooga, 264 U.S. 472 (1924);
Terminal Shares v. Chicago, B & Q.R. Co., 65 F.Supp. 678, 683
(1946)(finding that the power of eminent domain is conferred upon a
railroad ``as one in trust, to be exercised in promoting the public
interest.'' ``[It] is not a power owned by a railroad corporation as
one of its assets, that it may barter about and pass as a
consideration in contracts and agreements.'')
---------------------------------------------------------------------------
5. Review of Easement Documents
The landowner groups request that the Commission assign a person
from the Commission's staff to each area of pipeline construction from
the beginning of easement negotiations to assist landowners in land
acquisition. They contend that the Commission should assure that
pipelines do not try to acquire more than what they are entitled to by
the certificate. Additionally, they request that the Commission review
all easement agreements to determine if they are consistent with the
certificate authorization. They state that the landowner does not want
to relinquish more rights than the Commission intended and that the
company should not be able to acquire more than the Commission
intended. They state that in several recent projects there are
discrepancies between the certificate authorization and easement
documents/court papers and that they do not have the knowledge or
resources to fight the pipeline.
The Commission does not believe it is necessary to review every
easement document negotiated by the pipeline or submitted to the court
for the condemnation proceeding. However, we expect that the pipelines
will negotiate with the landowners fairly and in good faith. We believe
the landowners have a right to know the specific area the Commission
has authorized the pipeline to take and the specific activities the
Commission has authorized for that property before they begin any
negotiations for the easement. We note that the pipeline should clearly
explain and delineate at the beginning of the negotiations what is
specifically covered by the Commission's certificate.
Further, in the future, where landowner issues are a concern, as a
condition to a certificate to construct facilities, the Commission may
require that the pipeline specifically state in the easement document
the specific area that is covered by easement and the phone number and
a name of a representative of the pipeline the landowners can call if
they have a question concerning the easement agreement.
G. Negotiated Rulemaking
Finally, the Commission stated that it was considering using the
negotiated rulemaking process under the Negotiated Rulemaking Act of
1990 as an alternative to traditional rulemaking to promulgate new
regulations for its landowner notification policy. Generally, the
comments were not in favor of the negotiated rulemaking process. The
Iowa Board stated that it found such a process for these types of
issues combative and partisan. Others stated that the negotiated
rulemaking process was too rigid a structure. However, many supported
the use of working groups to address some of the more controversial
issues.
The Negotiated Rulemaking Act recommends that an agency consider
the feasibility of regulatory negotiations to resolve a specific issue
when: (1) There is a need for a rule; (2) there are a limited number of
identifiable interests; (3) these interests can be adequately
represented by persons willing to negotiate in good faith to reach a
consensus; (4) there is a likelihood that the committee will reach
consensus within a fixed period of time; (5) the negotiated rulemaking
procedure will not unreasonably delay the notice of proposed
rulemaking; (6) the agency has adequate resources and is willing to
commit such resources to the process; and (7) the agency is committed
to use the result of the negotiation in formulating a proposed rule if
at all possible.
Generally, in light of the comments received in this proceeding, it
is evident that the Commission can rule on many of the issues based on
the written record in this proceeding. For example, all parties are in
agreement that earlier notification is necessary. However, the
pipelines want notification to be after
[[Page 27726]]
the application is filed. The landowner groups want to be notified
earlier to participate in the siting process. It is doubtful that any
further negotiations would produce a consensus on this issue and it
will probably create an unnecessary delay. Additionally, there is very
little controversy over how the notice should be delivered and what
should be included in the notice. While other issues, for example, who
should be included in the group notified and whether the Commission
should designate residential areas as sensitive environmental areas,
may merit further public discussion, forming a negotiated rulemaking
committee on the basis of those issues alone would likely delay
implementation of new notification regulations that are clearly needed
now. In the event, after the Commission issues this NOPR, it is
determined that certain issues may benefit from further public
discussion, the Commission may hold additional technical conferences to
discuss those issues.
IV. Information Collection Statement
The proposed rule, if adopted, would establish new reporting
requirements and modify existing reporting requirements under 18 CFR
Parts 2.55, 153, 157, and 380 of the Commission's Regulations. The
information requirements proposed in the subject rulemaking would
affect, and become part of, the data requirements under the
Commission's FERC-537 15 and FERC-577 16 data
collections. Specifically, the subject rule would require notification
of all landowners whose land may be affected by proposed natural gas
pipeline projects.
---------------------------------------------------------------------------
\15\ Gas Pipeline Certificates: Construction, Acquisition, and
Abandonment.
\16\ Gas Pipeline Certificates: Environmental Impact Statement.
---------------------------------------------------------------------------
In accordance with Section 3507(d) of the Paperwork Reduction Act
of 1995,17 the proposed data requirements in the subject
rulemaking are being submitted to the Office of Management and Budget
(OMB) for review.
---------------------------------------------------------------------------
\17\ 44 U.S.C. 3507(d).
---------------------------------------------------------------------------
The estimated reporting burden related to the notification
requirements proposed herein is shown in the tables below. The
estimates include an initial one-time start-up burden of 8,800 hours
for the first year plus an on-going annual burden of 7,284 hours under
FERC-577 and a decrease of 12,600 hours under FERC-537. The net change
in total reporting burden under the data collections would be an
estimated net increase of 3,484 hours for the first year. In subsequent
years, there would be a net decrease of 5,316 hours.
To consider the impact on the persons affected by this rulemaking,
comments are solicited on the need for this notice requirement, whether
the information/notice will have practical utility, the accuracy of the
provided burden estimates, ways to enhance the quality, utility, and
clarity of the information requirements, and any suggested methods for
minimizing respondent's burden, including the use of automated
information techniques. The Commission would like specific comments on
the impact of this rule on individual natural gas companies. Both
estimates of current burden and impact should be in work hours and
dollar costs in sufficient detail to demonstrate methodology and
assumptions.
The burden estimates for complying with this proposed rule are as
follows:
Public Reporting Burden: Estimated Annual Burden: The burden
estimates for complying with this proposed rule are as follows:
----------------------------------------------------------------------------------------------------------------
Number. of Number of Hours per Total annual
Data collection respondents responses response hours
----------------------------------------------------------------------------------------------------------------
FERC-537............................................ 50 -50 252 -12,600
FERC-577............................................ 70 -20 18 +13.9 19 +16,084
-----------------------------------------------------------
Total........................................... 70 -70 20 +2.1 +3,484
----------------------------------------------------------------------------------------------------------------
18 The increase per response based on an estimated 1,160 responses per year. Note: Detail may not add to total
because of rounding.
19 Includes one-time initial start-up burden of 8,800 hours.
20 Represents the increase per response (rounded) based on the net increase in total reporting burden (3,484
hours) divided by the total number of responses expected annually under both FERC-537 and FERC-577 (1,690
responses).
Total Annual Hours for Collections
Annual reporting burden (including one-time start-up burden during
the first year of implementation) plus record keeping (if
appropriate)=3,484 hours.
Based on the Commission's experience with processing applications
for construction and acquisition of pipeline facilities over the last
three fiscal years (FY96-FY98), it is estimated that 1,690 filings/
responses per year (under both data collections) will be made over the
next three years. The average burden per filing would increase 2.1
hours; the average burden per respondent would increase 49.8 hours.
Following the first year of implementation, the reporting burden under
FERC-577 would be reduced by 8,800 hours.
Information Collection costs: The Commission seeks comments on the
costs to comply with these requirements. It has projected the average
annualized cost for all respondents during the first year of
implementation to be:
----------------------------------------------------------------------------------------------------------------
Annualized on-
Annualized going costs Total
Data collection capital/start- (operations annualized
up costs and costs
maintenance)
----------------------------------------------------------------------------------------------------------------
FERC-537........................................................ 0 -$665,674 -$665,674
FERC-577........................................................ $464,915 384,823 849,738
-----------------------------------------------
Total....................................................... 464,915 -280,851 184,064
----------------------------------------------------------------------------------------------------------------
[[Page 27727]]
OMB regulations require its approval of certain information
collection requirements imposed by agency rule.21
Accordingly, pursuant to OMB regulations, the Commission is providing
notice of its proposed information collections to OMB.
---------------------------------------------------------------------------
\21\ 5 CFR 1320.11 (1997).
---------------------------------------------------------------------------
Title: FERC-537 ``Gas Pipeline Certificate: Construction,
Acquisition, and Abandonment.'' and FERC-577 ``Environmental Impact
Statement.''
Action: Proposed Data Collections.
OMB Control No.: 1902-0060 (FERC-537); 1902-0128 (FERC-577).
Applicants shall not be penalized for failure to respond to these
collections of information unless the collections of information
display a valid OMB control number. The notice requirements proposed in
the subject rule would be mandatory if adopted by the Commission in a
Final Rule.
Respondents: Businesses or other for profit. (Interstate natural
gas pipelines (Not applicable to small business))
Frequency of Responses: On occasion.
Necessity of Information: The proposed rule revises the
Commission's regulations governing the filing of applications for the
construction and operation of pipeline facilities to provide service or
to abandon facilities or service under section 7 of the NGA. Section 7
of the NGA requires the Commission to issue certificates of public
convenience and necessity for all interstate sales and transportation
of natural gas, the construction and operation of natural gas
facilities used for those interstate sales and transportation and prior
Commission approval of abandonment of jurisdictional facilities or
services. The Commission has determined that portions of its
regulations need to be revised to reflect a recent increase in
sensitivity of the public to pipeline construction, and a desire on the
part of the public to receive more timely notification of pipeline
construction proposals. Certain other changes are being made because of
the Commission's experience in the processing of some applications for
which an environmental assessment is unnecessary.
Internal Review: The Commission has assured itself, by means of its
internal review, that there is specific, objective support for the
burden estimates associated with the information requirements. These
requirements conform to the Commission's plan for efficient information
collection, communication, and management within the natural gas
industry.
For information on the requirements, submitting comments concerning
the collection of information and the associated burden estimates,
including suggestions for reducing this burden, please send your
comments to the Federal Energy Regulatory Commission, 888 First Street,
NE., Washington, DC 20426 [Attention: Michael Miller, Office of the
Chief Information Officer, Phone: (202) 208-1415, fax: (202) 273-0873,
e-mail: [email protected]]. In addition, comments on reducing the
burden and/or improving the collections of information should also be
submitted to 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, D.C. 20503,
phone (202) 395-3087, fax: (202) 395-7285.
V. Regulatory Flexibility Act Certification
The Regulatory Flexibility Act (RFA) requires agencies to prepare
certain statements, descriptions and analyses of proposed rules that
will have a significant economic impact on a substantial number of
small entities.22 The Commission is not required to make
such analyses if a rule would not have such an effect.23
---------------------------------------------------------------------------
\22\ 5 U.S.C. 601-612 (1988).
\23\ 5 U.S.C. 605(b)(1988).
---------------------------------------------------------------------------
The Commission does not believe that this rule would have such an
impact on 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 proposed herein will
not have a significant adverse impact on a substantial number of small
entities.
VI. Environmental Statement
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.24 The
Commission has categorically excluded certain actions from these
requirements as not having a significant effect on the human
environment.25 Generally, the actions proposed to be 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.26 While the additions of the
categorical exclusion in proposed sections 380.4(a)(31) through (36)
include construction-type activities, the above section that discusses
those sections explains why they do not have a significant effect on
the environment. Accordingly, we do not believe that any further
analysis is needed. Therefore, an environmental assessment is
unnecessary and has not been prepared in this rulemaking.
---------------------------------------------------------------------------
\24\ Regulations Implementing the National Environmental Policy
Act, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs.
Preambles 1986-1990 para. 30,783 (1987).
\25\ 18 CFR 380.4.
\26\ See 18 CFR 380.4(a)(2)(ii), 380.4(a)(5), 380.4(a)(27).
---------------------------------------------------------------------------
VII. Public Comment Procedures
The Commission invites interested persons to submit written
comments on the matters and issues proposed in this notice to be
adopted, including any related matters or alternative proposals that
commenters may wish to discuss.
The original and 14 copies of such comments must be received by the
Commission before 5:00 p.m., June 21, 1999. Comments should be
submitted to the Office of the Secretary, Federal Energy Regulatory
Commission, 888 First Street, NE, Washington DC 20426 and should refer
to Docket No. RM98-17-000.
In addition to filing paper copies, the Commission encourages the
filing of comments either on computer diskette or via Internet E-Mail.
Comments may be filed in the following formats: WordPerfect 6.1 or
lower version, MS Word Office 97 or lower version, or ASCII format.
For diskette filing, include the following information on the
diskette label: Docket No. RM98-17-000; the name of the filing entity;
the software and version used to create the file; and the name and
telephone number of a contact person.
For Internet E-Mail submittal, comments should be submitted to
``[email protected]'' in the following format. On the subject
line, specify Docket No. RM98-17-000. In the body of the E-Mail
message, include the name of the filing entity; the software and
version used to create the file, and the name and telephone number of
the contact person. Attach the comment to the E-Mail in one of the
formats specified above. The Commission will send an automatic
acknowledgment to the sender's E-Mail address upon receipt. Questions
on electronic filing should be directed to Brooks Carter at 202-501-
8145, E-Mail address [email protected].
[[Page 27728]]
Commenters should take note that, until the Commission amends its
rules and regulations, the paper copy of the filing remains the
official copy of the document submitted. Therefore, any discrepancies
between the paper filing and the electronic filing or the diskette will
be resolved by reference to the paper filing.
All written comments will be placed in the Commission's public
files and will be available for inspection in the Commission's Public
Reference room at 888 First Street, NE, Washington DC 20426, during
regular business hours. Additionally, comments may be viewed and
printed remotely via the Internet through FERC's Homepage 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].
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 380
Environmental impact statements, Reporting and recordkeeping
requirements.
By direction of the Commission.
David P. Boergers,
Secretary.
In consideration of the foregoing, the Commission proposes to amend
Parts 2, 153, 157, and 380 Chapter I, Title 18, Code of Federal
Regulations, as set forth below.
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. 2.55 [Amended]
2. In Sec. 2.55, paragraph (b)(1)(ii) is revised and new paragraphs
(b)(1)(iii) and (iv) are added to read as follows:
* * * * *
(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 as determined by the guidelines in Appendix A of
this Part;
(iii) Except as described in paragraph (b)(2) of this section, the
company will file notification of such activity with the Commission at
least 30 days prior to commencing construction; and
(iv) The company will notify the affected landowner 30 days prior
to commencing construction. The notification shall include:
(A) A brief description of the facilities to be replaced and the
effect the construction activity will have on the landowner's property;
(B) The name and phone number of a company representative that is
knowledgeable about the project; and
(C) An explanation of the Commission's Enforcement Hotline
procedures, as codified in section 1b.21 of this chapter, and the
Enforcement Hotline phone number.
* * * * *
PART 153--APPLICATIONS FOR AUTHORIZATION TO CONSTRUCT, OPERATE, OR
MODIFY FACILITIES USED FOR THE EXPORT OR OF IMPORT NATURAL GAS
3. The authority citation for Part 153 continues to read as
follows:
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.
4. New section 153.3 is added to read as follows:
Sec. 153.3 Notice requirements.
All applications filed under this part are subject to the landowner
notification requirements in Sec. 157.6 of this chapter.
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
5. 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.
Subpart A--Applications for Certificates of Public Convenience and
Necessity and for Orders Permitting and Approving Abandonment Under
Section 7 of the Natural Gas Act, as Amended, Concerning Any
Operation, Sales, Service, Construction, Extension, Acquisition or
Abandonment
6. In Sec. 157.6, a new paragraph (d) is added to read as follows:
Sec. 157.6 Applications; general requirements.
* * * * *
(d) Landowner notification. (1) For all applications filed under
this subpart, the applicant shall notify all affected landowners by
certified or first class mail, within 3 business days following the
date that it files an application of its intent to construct or abandon
facilities.
(2) All affected landowners includes owners of real property, as
noted in the most recent county/city tax records as receiving the tax
notice, whose property:
(i) Is directly affected by the proposed activity, including all
facility sites, rights-of-way, and temporary workspace;
(ii) Abuts an existing right-of-way or facility site owned in fee
by any utility company, in which the facilities would be constructed;
(iii) Abuts the facility site for compressor or LNG facilities; or
(iv) Is within the area of new storage fields or expansions of
storage fields and any applicable buffer zone.
(3) The notice shall include:
(i) The docket number of the filing;
(ii) The most recent edition of the Commission's pamphlet that
explains the Commission's certificate process and addresses the basic
concerns of landowners.
(iii) A description of the applicant and the proposed project, its
location, its purpose, and the timing of the project;
(iv) A description of how the landowner may contact the applicant,
including a local or toll-free phone number and a name of a specific
person to contact who is knowledgeable about the project; and
(v) Information on how the landowner can get a copy of the
application from the company or the location(s) where a copy of the
application may be found as specified in Sec. 157.10.
(4) If the notice is returned as undeliverable, the applicant will
make a reasonable attempt to find the correct address and notify the
landowner.
(5) Within 30 days of the date the application was filed, applicant
shall
[[Page 27729]]
file an updated list of affected landowners, including information
concerning notices that were returned undeliverable.
7. In Sec. 157.103, a new paragraph (k) is added to read as
follows:
Sec. 157.103 Terms and conditions; other requirements.
* * * * *
(k) Applications filed under this section are subject to the
landowner notification requirements described in Sec. 157.6(d).
8. In Sec. 157.202, a sentence is added to the end of paragraph
(b)(2)(i), paragraph (b)(6)(ii) is revised, and paragraph (b)(11)(i) is
revised to read as follows:
Sec. 157.202 Definitions.
* * * * *
(b) * * *
(2)(i) * * * Eligible facility includes observation wells.
* * * * *
(6) * * *
(ii) When required by highway construction, dam construction,
encroachment of residential, commercial, or industrial areas, erosion,
or the expansion or change of course of rivers, streams or creeks, or
* * * * *
(11) Sensitive environmental area means:
(i) The habitats of species which have been identified as
endangered or threatened under the Endangered Species Act (Pub. L. 93-
205, as amended) and essential fish habitat as identified under the
Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C.
1801, et seq.);
* * * * *
9. In Sec. 157.203, new paragraph (d) is added to read as follows:
Sec. 157.203 Blanket certification.
* * * * *
(d) Landowner notification. (1) No activity described in
Sec. 157.203(b) is authorized unless the company notifies all affected
landowners, as defined in Sec. 157.6(d)(2), at least 30 days prior to
commencing construction. The notification shall include:
(i) A brief description of the facilities to be constructed or
replaced and the effect the construction activity will have on the
landowner's property;
(ii) The name and phone number of a company representative who is
knowledgeable about the project; and
(iii) An explanation of the Commission's Enforcement Hotline
procedures, as codified in section 1b.21 of this chapter, and the
Enforcement Hotline telephone number.
(2) For activities described in Sec. 157.203(c) the company shall
notify all affected landowners, as defined in Sec. 157.6(d)(2), within
three business days of filing its application. The notice should
include:
(i) A brief description of the facilities to be constructed or
replaced and the effect the construction activity will have on the
landowner's property;
(ii) The name and phone number of a company representative that is
knowledgeable about the project;
(iii) The docket number assigned to the company's application; and
(iv) The following paragraph: This project is being proposed under
the prior notice requirements of the blanket certificate program
administered by the Federal Energy Regulatory Commission. Under the
Commission's regulations, you have the right to protest this project
within 45 days of the date the Commission issues a notice of the
pipeline's filing. If you file a protest, you should include the docket
number listed in this letter and provide the specific reasons for your
protest. The protest should be mailed to the Secretary of the Federal
Energy Regulatory Commission, 888 First St., NE, Room 1A, Washington,
DC 20426. A copy of the protest should be mailed to the pipeline at
[pipeline address]. If you have any questions concerning these
procedures you can call the Commission's Office of External Affairs at
(202) 208-1088.
10. In Sec. 157.206, new paragraphs (b)(2)(xii), (b)(3)(iv) and
(b)(8) are added to read as follows:
Sec. 157.206 Standard conditions.
* * * * *
(b) Environmental compliance. * * *
(2) * * *
(xii) Magnuson-Stevens Fishery Conservation and Management Act (16
U.S.C. 1801, et seq.)
(3) * * *
(iv) Paragraphs (b)(2)(i) and (viii) of this section only if it
adheres to Commission staff's current ``Upland Erosion Control,
Revegetation and Maintenance Plan'' and ``Wetland and Waterbody
Construction and Mitigation Procedures'' which are available on the
Commission Internet home page or from the Commission staff, or gets
written approval from the staff or the appropriate Federal or state
agency for the use of project-specific alternatives to clearly
identified portions of those documents.
* * * * *
(8) The certificate holder shall notify the affected landowners of
the project at least 30 days prior to the beginning of construction for
automatically authorized activities, or within 3 business days of
filing the prior notice, as specified in Secs. 157.203(d).
* * * * *
PART 380--REGULATIONS IMPLEMENTING THE NATIONAL ENVIRONMENTAL
POLICY ACT
11. 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.
12. In Sec. 380.4(a), new paragraphs (31) through (36) are added to
read as follows:
Sec. 380.4 Projects or actions categorically excluded
(a) * * *
* * * * *
(31) Abandonment of facilities by sale that involves only minor or
no ground disturbance to disconnect the facilities from the system;
(32) Conversion of facilities from use under the NAPA to use under
the NGA;
(33) Construction or abandonment of facilities constructed entirely
in Federal offshore waters that has been approved by the Minerals
Management Service and the Corps of Engineers, as necessary;
(34) Abandonment or construction of facilities on an existing
offshore platform;
(35) Abandonment, construction or replacement of a facility (other
than compression) solely within an existing building within a natural
gas facility (other than LNG facilities), if it does not increase the
noise or air emissions from the facility, as a whole; and
(36) Conversion of compression to standby use if the compressor is
not moved, or abandonment of compression if the compressor station
remains in operation.
13. In Sec. 380.12, paragraph (c)(5) is revised; paragraph (c)(10)
is revised; and the first two sentences of (e)(5) are revised to read
as follows:
Sec. 380.12 Environmental reports for Natural Gas Act applications.
* * * * *
(c) * * *
(5)(i) Identify facilities to be abandoned, and state how they
would be abandoned, how the site would be restored, who would own the
site or right-of-way after abandonment, and who would be responsible
for any facilities abandoned in place.
(ii) When the right-of-way or the easement would be abandoned,
identify whether landowners were given the
[[Page 27730]]
opportunity to request that the facilities on their property, including
foundations and below ground components, be removed. Identify any
landowners whose preferences the company does not intend to honor, and
the reasons therefore.
* * * * *
(10) Provide the names and mailing addresses of all affected
landowners specified in Sec. 157.6(d) and certify that all affected
landowners will be notified as required in Sec. 157.6(d).
* * * * *
(e) * * *
(5) Identify all federally listed or proposed threatened or
endangered species and critical habitat and federally listed essential
fish 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) for endangered or
threatened species and with the National Marine Fisheries Service for
essential fish habitat, and include any written correspondence that
resulted from the consultation. * * *
* * * * *
14. In Appendix A to Part 380, the descriptions of Resource Reports
1 and 3 are revised to read as follows:
Appendix A to Part 380-Minimum Filing Requirements for
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 (NSAs) 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 address of all affected landowners and
certify that all affected landowners will be notified as required in
Sec. 157.6(d). (Sec. 380.12(a)(4) and (c)(10))
* * * * *
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 and federally listed essential fish habitat 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))
* * * * *
[FR Doc. 99-11215 Filed 5-20-99; 8:45 am]
BILLING CODE 6717-01-P