Federal Energy Regulatory Commission.
Final Rule; Order on Rehearing.
On rehearing the Federal Energy Regulatory Commission (Commission) reaffirms its basic determinations in Order 609 and modifies and clarifies certain aspects of the Final Rule. Order 609 added certain early landowner notification requirements to its regulations under the Natural Gas Act (NGA) 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 Final Rule also amended 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 under the Commission's regulations; expanding the types of events that allow pipelines to rearrange facilities under their blanket construction certificates; and adding certain other environmental requirements.
The revisions to the regulations in this order on rehearing become effective April 21, 2000.
Federal Energy Regulatory Commission, 888 First Street, N.E., Washington, D.C. 20426.Start Further Info
FOR FURTHER INFORMATION CONTACT:
John S. Leiss, Office of Energy Projects, Federal Energy Regulatory Commission, 888 First Street, N.E., Washington, DC 20426, (202) 208-1106
Carolyn Van Der Jagt, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, (202) 208-2246.End Further Info End Preamble Start Supplemental Information
In this order the Federal Energy Regulatory Commission (Commission) is modifying and clarifying certain aspects of the Final Rule issued in Order No. 609.  Generally, this order: (1) Requires that the Commission's notice of application and information on how to intervene be included in the notification to affected landowners; (2) Expands the definition of “affected landowner” to include owners of residences within 50 feet of the proposed construction work area; (3) Clarifies the requirements for the newspaper notice; (4) Explains how the notice requirement pertains to storage fields; (5) Denies a request to eliminate the requirement to provide an explanation of state eminent domain laws; (6) Allows a waiver of the 30-day notice requirement for blanket activities when the landowner agrees to the waiver and/or when the landowner requests the service/facility; (7) Requires no notification for non-ground disturbing projects; and (8) Clarifies that new injection/withdrawal wells cannot be constructed under § 2.55 of the Commission's regulations or under a pipeline's blanket certificate authorization.
On October 13, 1999, the Commission issued a Final Rule in Order No. 609. The Final Rule: (1) Provided for earlier and more informed landowner involvement in natural gas projects; (2) Streamlined the regulation process by categorically excluding certain types of activities from the need to have an Environmental Assessment prepared for them; and (3) Updated the environmental requirements for projects under the Natural Gas Act (NGA).
The Commission received rehearing/clarification requests from three parties including Columbia Gas Transmission Corporation (Columbia), Interstate Natural Gas Association of America (INGAA), and Williston Basin Interstate Pipeline Company (Williston Basin). Travis Kenneth Bynum filed a “Motion to Deny Rehearing,” alleging that the motions of the other parties failed to establish error on the part of the Commission. We address each of the requests for rehearing/clarification below, granting or denying them as discussed herein.
A. Landowner Notification
In the Final Rule, the Commission required in § 157.6(d) that all applicants seeking authorization under Part 157 of the Commission's regulations notify all affected landowners of record, as indicated in the most recent tax rolls, of their application by certified or first class mail (or by hand) within three (3) business days following the date a docket number is assigned to the filed application.
1. Notification of Intervention Deadline
The intent of the Commission in implementing § 157.6(d) was to 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. In the Final Rule, we required that the notice mailed by applicants to affected landowners include, among other information: (1) The docket number of the filing; (2) The most recent edition of the Commission's pamphlet explaining the Commission's certificate process; and (3) A brief summary of what rights the landowner has at FERC. However, we did not require that the notice include the deadline for interested parties to file timely requests to intervene in the Commission's proceedings on the application.
The reason for that omission is that § 157.6(d) requires notice to be sent within three business days of the date a docket number is assigned to the filed application, whereas the Commission's notice establishing the intervention deadline may not be issued for up to ten days after the date the application is filed. Currently, the Commission's notice is published in the Federal Register and is available to the public electronically on the Commission's Internet web site, but is not sent directly Start Printed Page 15235to any party. Thus, after receiving notice of an application from the applicant, affected landowners will generally know how to get involved in the proceedings before the Commission, but will not know, without further effort on their part, by when they must act to do so in a timely manner. Further, while the Commission has, and will continue to liberally exercise its discretion in granting late-intervenor status to requesting landowners and other interested parties, many landowners resent having to request what they see as special permission to participate. 
To rectify this situation, we will modify the requirements of § 157.6(d)(3) to require that the notice mailed to affected landowners include a copy of the Commission's notice of the application, specifically stating the date by which timely motions to intervene are due, together with the Commission's information sheet on how to intervene in Commission proceedings. This sheet is available on the Commission's Internet Website at http://www.ferc.fed.us/public/intervene.htm. To make the inclusion of these documents possible, we will also modify § 157.6(1)(i) to require that the notice be sent within three days of the date the Commission notice is issued, rather than the date a docket number is assigned. Finally, we will require that the notice be mailed not only to affected landowners, but also to all towns, communities, and local, state and federal government agencies involved in the project. This expanded mailing list corresponds to those entities generally receiving the Commission's Notice of Intent to prepare an environmental assessment of a project.
2. Affected Landowners
Section 157.6(d)(2)(ii) defines “affected landowner” to include owners whose property “abuts either side of an existing right-of-way or facility site owned in fee by any utility company, or abuts the edge of a proposed right-of-way which runs along a property line in the area in which the facilities would be constructed.” However, there may be instances where there is a residence in close proximity to the proposed right-of-way, but located on a parcel of land which does not abut the proposed right-of-way. Such property owners would clearly be affected by the proposed construction, but would not receive direct notification of the proposal under the requirement as stated above. Therefore, we will modify § 157.6(d)(2)(ii) to include owners of residences within 50 feet of the proposed construction work area.
3. Newspaper Notification
Section 157.6(d)(1)(iii) requires that the applicant include a notice of the project in a newspaper(s) of general circulation in the project area within a week of the filing. Pursuant to the provisions of § 157.6(d)(3), this notice must include: (1) The docket number of the filing; (2) A description of the applicant and the proposed project, the project's location (including a map), its purpose, and proposed timing; (3) A general description of what the pipeline will need from the landowner if the project is approved; (4) How to contact the applicant for further information; (5) A brief summary of what rights a person has at the Commission and their rights under the eminent domain rules in the relevant state; and (6) Information on how to get a copy of the application from the applicant or where copies of the application may be located for public review.
On rehearing, INGAA states that as the regulation is currently written, the entire list of items that must be included in the landowner notification letter also must be included in the newspaper notification. INGAA asserts that this is a substantial amount of information to be printed in the newspaper. It suggests that the newspaper notice should only include the fact that an application has been filed at the Commission, the docket number, a general description of the route of the project, identification of a company contact person, and where copies of the application may be accessed. It also suggests that the newspaper notice only identify the other items that are listed in § 157.6(d)(3) and allow the reader to contact the applicant if they wish more detailed information. It says this would avoid the lengthier and costlier newspaper notice that is currently required.
Generally, INGAA's suggestion includes most of the items required for the landowner notice. The items INGAA proposes be omitted from the published notice include (1) A description of the company, (2) The project's purpose and timing, (3) A general description of what will be needed from landowners if the project is approved, (4) A general location map, and (5) A summary of the landowner's rights at the Commission and in eminent domain proceedings.
First, we note that items (1), (2), and (3) should not involve a substantial amount of text and are basic to the purpose of the notification. Accordingly, that information should be printed in the newspaper to ensure the public can quickly judge whether or not the project is of interest to them. Similarly, including a general location map complements the project description and has the advantage of reducing inquiries from people who might otherwise be unsure of their physical relationship to the project's location. Therefore, those items should continue to be part of the newspaper notification.
However, we find that at least a portion of (5) may be unnecessary for the published newspaper notice. While affected landowners, as defined by the regulations, have a need for basic information regarding eminent domain, the general public may not, since there is little chance that persons not meeting the regulation's definition of “affected landowner” will be subject to condemnation. In addition, we believe that publishing the Commission's Internet Website address and the telephone number for the Commission's Office of External Affairs will provide sufficient information to enable those members of the general public who desire to become involved in the Commission's proceeding to do so. We will modify § 157.6(d)(3)(v) accordingly. We will also modify § 157.6(d)(3)(ii) to clarify that while pipelines are not required to include the Commission's pamphlet in the published notice, they should provide the title of the pamphlet and indicate its availability at the Commission's Internet address.
Finally, we note that the regulations are silent as to the length of time the notice needs to be published in the newspaper. We will clarify that the newspaper notice must be published twice in a daily or weekly newspaper of general circulation in each county in which the project is located. This is consistent with the Commission's regulations under the Federal Power Act in § 4.32(b)(6) of the Commission's regulations. We will modify § 157.6(d)(1)(iii) accordingly.
4. Storage Fields
As adopted in the Final Rule, § 157.6(d)(2)(iv) defines affected landowners subject to the notice requirement as landowners whose land is “within the area of new storage fields or expansions of storage fields, including any applicable buffer zone.” Start Printed Page 15236
INGAA and Williston Basin contend that the discussion of this section in the Final Rule is unclear and may imply a broader notification requirement than is intended in the codified § 157.6(d)(2)(iv). They request that the Commission clarify that pipelines are only required to notify surface and subsurface owners when proposing to develop and operate new storage fields or when expanding the boundaries of existing storage fields. They assert that storage fields encompass thousands of acres and have potentially hundreds of surface and subsurface property owners and that it would be burdensome and costly to notify all property interest owners within the entire certificated storage boundaries when a pipeline is replacing facilities under its blanket authority. Columbia makes a similar argument.
Under § 157.6(d)(2)(iv), if a new storage field is proposed, all owners of surface and subsurface property within the boundaries of the field and its buffer zone need to be notified of the project. If an existing storage field is proposed for expansion, all the surface and subsurface owners of property within the area between the existing certificate boundary and the proposed new certificate boundary of the field and its buffer zone need to be notified. If new facilities are being added within the existing certificate boundaries of an existing storage field and there is no change to the certificated boundaries, then § 157.6(d)(2)(iv) does not apply. However, in the latter case, §§ 157.6(d)(2)(i) through (ii) would apply.
5. Eminent Domain Proceedings and Landowner Rights
In the Final Rule, § 157.6(d)(3)(v) requires the notice to include a description of the rights a landowner has in proceedings at the Commission and in eminent domain proceedings in state court.
INGAA states that the requirement to summarize state eminent domain laws is unreasonable. Specifically, INGAA contends that this notice requirement could result in landowners claiming that they have been given legal advice. INGAA claims that pipelines should not be required to provide any legal opinion as to what a landowner's rights are under the eminent domain rules of the state because any omissions or mistaken statements could expose the pipeline to unnecessary litigation. INGAA requests that the Commission eliminate this requirement. In the alternative, INGAA requests that the Commission clarify that a pipeline will have sufficiently complied with this section if it cites the state statutes, as of the date of the filing of the application, related to eminent domain.
Further, INGAA requests that the Commission clarify that since the Commission's pamphlet explains a landowner's rights at the Commission, § 157.6(d)(3)(v) is satisfied by the applicant's providing the Commission's pamphlet. It asserts that requiring the pipeline to separately summarize a landowner's rights at the Commission would be duplicative and may cause confusion if the pipeline's phrasing is different from the pamphlet's phrasing.
We believe that the applicant should provide landowners with some basic information concerning what is involved in the eminent domain process. The general public is probably not greatly informed on these matters and may need to invest significant time and money just to get a basic understanding. We do not believe that providing this information would put the applicant at risk for unnecessary litigation, especially if the applicant prefaces its explanation with a disclaimer statement.
Guardian Pipeline's (Guardian) Landowner Rights summary, filed in Docket No. CP00-36-000 and provided to affected landowners in that proceeding (and also posted on its Internet Website at www.guardianpipeline.com), is a good example of what the Commission expects the applicant to provide to the landowners. It starts with a disclaimer statement and recommends that if the individual has any questions about their rights, they should seek the advice of an attorney. Next, it refers to the Commission's pamphlet and gives a short summary of the landowners' rights at the Commission. After this summary, it refers readers to the Commission's Office of External Affairs for further information. It then briefly summarizes the pipeline's general right to eminent domain and summarizes the eminent domain laws in Wisconsin and Illinois. Finally, it refers readers to the Wisconsin Department of Commerce and the Illinois Attorney General, respectively, for further information on the individual state laws. We believe this format meets the requirements of our regulations without subjecting the applicant to any legal liability.
6. Blanket Projects.
In the Final Rule, § 157.203(d)(1) requires that the pipeline notify any affected landowner of a project which is automatically approved under the blanket certificate program of Subpart F of Part 157 of the Commission's regulations. The notification must be provided at least 30 days prior to the beginning of construction activities or at the time easement negotiations begin, whichever is earlier.
INGAA and Williston Basin request that the Commission allow landowners to waive the 30-day notice period when the landowner is provided notification of a proposed project. They contend that if the landowner agrees to waive the 30-day notice period the pipeline should be able to proceed with construction without the Commission requiring approval of the waiver from the Director of the Office of Energy Projects.
INGAA also requests that the Commission clarify that landowner notice is not required for minor blanket projects that do not impact a landowner's property. This would include projects that are completely within the boundaries of an existing facility site or building, do not result in ground disturbance or, in the case of compression, do not increase air or noise emissions.
Additionally, Williston Basin argues that no notification should be required for blanket activities involving construction within existing rights-of-way pursuant to existing easements. It asserts that the landowner has already given an easement and as long as the pipeline's use is consistent with that easement there is no reason for the landowner to be notified that the pipeline is performing activities allowed by that easement. Further, it claims that it is inconsistent for the Commission to treat identical facilities installed under § 157.211 (e.g., farm taps) and § 2.55(b) differently. It argues that activities performed under the two provisions have similar effects on landowners.
First, we agree that the landowners should be allowed to specifically waive the 30-day notice period in writing, as long as they are provided the notice. We have modified § 157.203(d)(1) accordingly. We note that on January 5, 2000, Reliant Energy Gas Transmission Company (Reliant) filed an application in Docket No. CP00-66-000 seeking a general waiver of the 30-day notice requirement when the construction has been requested by the landowner, only Start Printed Page 15237that landowner's property will be affected by the construction, and the landowner has waived the 30-day period. We believe that there is no need to require any landowner notification in this circumstance. Therefore, we are providing an exception in § 157.6(d)(3)(iii) which makes notification unnecessary under these circumstances. This action will moot Reliant's request and we will issue a separate order dismissing that proceeding.
With respect to minor, non-ground disturbing projects, we agree that no landowner notification is required as long as projects do not materially change the appearance of the site. We have modified § 157.203(d)(3)(iv) accordingly.
Finally, as stated in Order No. 609, the Commission wants the opportunity to hear and act on landowners' concerns when the pipeline conducts an activity subject to the Commission's jurisdiction. Facilities constructed under § 2.55 are exempt from the Commission's jurisdiction, whereas activities performed under the pipelines' blanket certificates are subject to the Commission's jurisdiction. Further, facilities which may be constructed under §§ 157.211 or 157.208 are different from those constructed under § 2.55. In the latter case, an existing facility is being replaced by the same kind of facility, in the same location, entirely within an existing easement. Facilities constructed under blanket authority (either under § 157.211 or § 157.208) are usually at least partially outside of existing easements and are new. It is appropriate for the landowner to receive advance notice of such construction, even when it is anticipated by the existing easement. A signed easement agreement does not limit the right of a landowner to express concerns regarding additional uses of the land to the Commission, or to the company itself. The notice provides the landowner the opportunity to contact the pipeline or the Commission and to express such concerns.
7. Prior Notice Projects
In the Final Rule, § 157.203(d)(2) requires that the pipeline notify any affected landowner within three days of making the prior notice filing or at the time easement negotiations begin, whichever is earlier.
INGAA requests that the Commission revise this section to require notification “within 3 business days following the date that a docket number is assigned to the application or at the time the pipeline initiates easement negotiations, whichever is earlier”, to be consistent with the case-specific requirement.
We agree and have modified § 157.203(d)(2) accordingly.
B. Observation Wells
In the Final Rule, the Commission stated that observation wells can be constructed under § 2.55 of the Commission's regulations. The Final Rule also clarified that replacement wells can be constructed under § 2.55(b) if the wells fit the requirements of that section.
On rehearing, INGAA and Williston Basin request that the Commission clarify that the restrictions in § 2.55 that require that the replacement facilities be “in the same right-of-way or on the same site” do not apply to replacement wells. They contend that replacement wells are usually in close proximity, but are generally not in the same exact location, as the original facility. Accordingly, they request that the Commission either clarify that the site restrictions in § 2.55(b)(1)(ii) are not applicable to replacement wells or that replacements wells that do not qualify under § 2.55(b) because of the site restriction can be drilled under the pipeline's blanket certificate as long as those wells do not alter the certificated deliverability, capacity, or boundary of the field.
It was the Commission's intent that only replacement facilities which are in the same right-of-way or on the same site as the original facilities be constructed under § 2.55(b). Therefore, we cannot clarify the provision as proposed by the commenters. Moreover, as stated in Order Nos. 603-A, 603-B, and 609, the Commission does not believe that blanket certificate authorization provides adequate oversight of the construction of new injection/withdrawal wells, including those intended to replace existing wells, but constructed at a different site. Despite the fact that they are only intended to replace existing facilities, such wells may inherently alter the daily or seasonal deliverability, volumetric capacity, or boundary of a storage reservoir. Accordingly, separate NGA section 7(c) authorization is necessary prior to the drilling of replacement injection/withdrawal wells that are not on the site of the original facilities.
C. Other Clarifications
Finally, we have made a few typographical corrections to the minimum filing requirements in Appendix A to Part 380.
IV. Document Availability
In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through FERC's Home Page (http://www.ferc.fed.us) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street, N.E., Room 2A, Washington, DC 20426.
From FERC's Home Page on the Internet, this information is available in both the Commission Issuance Posting System (CIPS) and the Records and Information Management System (RIMS).
—CIPS provides access to the texts of formal documents issued by the Commission since November 14, 1994.
—CIPS can be accessed using the CIPS link or the Energy Information Online icon. The full text of this document is available on CIPS in ASCII and WordPerfect 8.0 format for viewing, printing, and/or downloading.
—RIMS contains images 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 from FERC's Home Page using the RIMS link or the Energy Information Online icon. Descriptions of documents back to November 16, 1981, are also available from RIMS-on-the-Web; requests for copies of these and other older documents should be submitted to the Public Reference Room.
User assistance is available for RIMS, CIPS, and the Website during normal business hours from our Help line at (202) 208-2222 (E-Mail to WebMaster@ferc.fed.us) or the Public Reference at (202) 208-1371 (E-Mail to firstname.lastname@example.org).
During normal business hours, documents can also be viewed and/or printed in FERC's Public Reference Room, where RIMS, CIPS, and the FERC Website are available. User assistance is also available.Start List of Subjects
List of Subjects
End List of Subjects Start Signature
By the Commission.
David P. Boergers,
In consideration of the foregoing, the Commission amends Parts 157 and 380, Chapter I, Title 18,End Amendment Part Start Part
PART 157—APPLICATIONS FOR CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY AND FOR ORDERS PERMITTING AND APPROVING ABANDONMENT UNDER SECTION 7 OF THE NATURAL GAS ACTEnd Part Start Amendment Part
1. The authority citation for Part 157 continues to read as follows:End Amendment Part Start Amendment Part
2. In § 157.6, paragraphs (d)(1) introductory text, (d)(1)(i) and (d)(1)(iii), (d)(2)(ii) and (d)(2)(iv), the last sentence of paragraph (d)(3)(ii) and paragraph (d)(3)(v) are revised; and a new paragraph (d)(3)(vii) is added to read as follows:End Amendment Part
(d) * * *
(1) For all applications filed under this subpart which include construction of facilities or abandonment of facilities (except for abandonment by sale or transfer where the easement will continue to be used for transportation of natural gas), the applicant shall make a good faith effort to notify all affected landowners and towns, communities, and local, state and federal governments and agencies involved in the project:
(i) By certified or first class mail, sent within 3 business days following the date the Commission issues a notice of the application; or
(ii) * * *
(iii) By publishing notice twice of the filing of the application, no later than 14 days after the date that a docket number is assigned to the application, in a daily or weekly newspaper of general circulation in each county in which the project is located.
(2) * * *
(ii) Abuts either side of an existing right-of-way or facility site owned in fee by any utility company, or abuts the edge of a proposed facility site or right-of-way which runs along a property line in the area in which the facilities would be constructed, or contains a residence within 50 feet of the proposed construction work area;
(iv) Is within the area of proposed new storage fields or proposed expansions of storage fields, including any applicable buffer zone.
(3) * * *
(ii) * * * Except: pipelines are not required to include the pamphlet in notifications of abandonments or in the published newspaper notice. Instead, they should provide the title of the pamphlet and indicate its availability at the Commission's Internet address;
(v) A brief summary of what rights the landowner has at the Commission and in proceedings under the eminent domain rules of the relevant state. Except: pipelines are not required to include this information in the published newspaper notice. Instead, the newspaper notice should provide the Commission's Internet address and the telephone number for the Commission's Office of External Affairs; and
(vii) A copy of the Commission's notice of application, specifically stating the date by which timely motions to intervene are due, together with the Commission's information sheet on how to intervene in Commission proceedings. Except: pipelines are not required to include the notice of application and information sheet in the published newspaper notice. Instead, the newspaper notice should indicate that a separate notice is to be mailed to affected landowners and governmental entities.
3. In § 157.203, paragraphs (d)(1) introductory text and (d)(2) introductory text are revised and new paragraphs (d)(3)(iii) and (d)(3)(iv) are added to read as follows:End Amendment Part
(d) * * *
(1) Except as identified in paragraph (d)(3) of this section, no activity described in paragraph (b) of this section is authorized unless the company makes a good faith effort to notify all affected landowners, as defined in § 157.6(d)(2), at least 30 days prior to commencing construction or at the time it initiates easement negotiations, whichever is earlier. A landowner may waive the 30-day prior notice requirement in writing as long as the notice has been provided. The notification shall include at least:
(2) For activities described in paragraph (c) of this section, the company shall make a good faith effort to notify all affected landowners, as defined in § 157.6(d)(2), within at least three business days following the date that a docket number is assigned to the application or at the time it initiates easement negotiations, whichever is earlier. The notice should include at least:
(3) * * *
(iii) No landowner notice is required if there is only one landowner and that landowner has requested the service or facilities.
(iv) No landowner notice is required for activities that do not involve ground disturbance or changes to operational air and noise emissions.
PART 380—[AMENDED]End Part Start Amendment Part
4. In Appendix A to Part 380:End Amendment Part
a. The reference to “(§§ 380.12 (a)(4) and (c)(10))” in paragraph number 8 under Resource Report 1—General Project Description is revised to read “(§ 380.12(c)(10))”;
b. The reference to “(§ 380.12 (f)(1)(ii) & (2))” in paragraph number 1 under Resource Report 4—Cultural Resources is revised to read “(§ 380.12 (f)(1)(i) & (2))”;
c. The reference to “(§ 380.12 (f)(1)(iii) & (2))” in paragraph number 2 under Resource Report 4 is revised to read “(§ 380.12 (f)(1)(ii) & (2))”; and
d. The reference to “(§ 380.12 (l)(3))” in paragraphs number 4 and 5 under Resource Report 10—Alternatives is revised to read “(§ 380.12 (l)(2)(ii))”.End Supplemental Information
1. Landowner Notification, Expanded Categorical Exclusions, and Other Environmental Filing Requirements, Order No. 609, 64 FR 57374, (Oct. 25,1999), FERC Stats. and Regs. ¶31,082 (Oct. 13, 1999).Back to Citation
2. We note that pursuant to § 380.10 of the Commission's regulations, interested persons may have subsequent opportunities to file timely interventions on environmental issues.Back to Citation
[FR Doc. 00-7062 Filed 3-21-00; 8:45 am]
BILLING CODE 6717-01-P