Columbia Gas Transmission, Llc v. Appalachian Timber Products, Inc. et al

MOTION for Partial Summary Judgment and Immediate Access to the Easements Condemned

W.D. Pa.March 14, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA COLUMBIA GAS TRANSMISSION, LLC, Plaintiff, v. TEMPORARY EASEMENTS FOR THE ABANDONMENT OF A NATURAL GAS TRANSMISSION PIPELINE ACROSS PROPERTIES IN SOMERSET AND FAYETTE COUNTIES, PENNSYLVANIA, OWNED BY MARK J. AND LINDA G. MCCARTY (PARCEL ID 42-38-0023 AND 16-18-005); APPALACHIAN TIMBER PRODUCTS, INC. (PARCEL ID 02-014- 038-00), and UNKNOWN PERSONS AND INTERESTED PARTIES, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 3:16-cv-268 MOTION FOR PARTIAL SUMMARY JUDGMENT AND IMMEDIATE ACCESS TO AND POSSESSION OF THE EASEMENTS CONDEMNED Pursuant to its power of eminent domain as authorized by the Natural Gas Act, 15 U.S.C. §§ 717-717(z) and Federal Rule of Civil Procedure 71.1, Columbia Gas Transmission, LLC (“Columbia”), condemned temporary property interests necessary to effectuate abandonment in place of a section of its Line 138 system and removal of certain above ground facilities over property owned by defendants Mark J. and Linda G. McCarty, Appalachian Timber Products, Inc. and Unknown Persons and Interested Parties (the “Defendants”). Specifically, Columbia condemned (1) temporary access to 25 feet of existing access roads on the Appalachian Timber property and 2300 feet of existing access road on the McCarty property, which Columbia must use to effectuate its activities in abandoning in place Line 138 and removing associated above Case 3:16-cv-00268-KRG Document 18 Filed 03/14/17 Page 1 of 7 - 2 - ground appurtenances and (2) temporary workspace of 0.1 acres on the McCarty property to effectuate the abandonment. Columbia must have access to defendants’ properties and the temporary easement by April 1, 2017 to safely and efficiently abandon the aging and deteriorating pipeline. Granting Columbia’s motion for partial summary judgment and immediate access to the defendants’ properties is in the public interest and will not affect Appalachian Timber’s right to receive just compensation for the property interests taken. In support, Columbia states: 1. Columbia initiated the condemnation action pursuant to the Natural Gas Act, 15 U.S.C. § 717f(h), and Federal Rule of Civil Procedure 71.1. 2. The section of Line 138 at issue is located in Somerset and Fayette Counties, Pennsylvania, and consists of pre-1950s era pipeline, with several sections now exposed. The age of the pipeline and exposure have resulted in deterioration of the pipeline, as well as issues with reliability and increased maintenance costs, and Columbia predicts that continued operation of this section of Line 138 will require the operating pressure to be reduced such that Columbia will no longer be able to serve its customers. 3. Pursuant to Section 7(h) of the Natural Gas Act, 15 U.S.C. § 717 f(h), Columbia has the right to condemn the temporary easements across the defendants’ properties at issue in order to effectuate abandonment in place of portions of the Line 138 pipeline and removal of certain above ground appurtenances. 4. Columbia holds easements across defendants’ properties to operate and maintain the pipeline. Pursuant to those easements, Columbia already holds the rights to abandon the pipeline in place, including removal of above ground appurtenances. Columbia only needs, and Case 3:16-cv-00268-KRG Document 18 Filed 03/14/17 Page 2 of 7 - 3 - is only condemning in this action, temporary easements necessary to effectuate the abandonment in place and removal of above ground appurtenances. 5. The temporary easements condemned are depicted on the maps attached as Exhibit C. The temporary easements condemned are (1) temporary access on both properties to existing access roads, which Columbia must use to effectuate its activities in abandoning in place Line 138 and removing certain above ground appurtenances, and (2) temporary workspace on the McCarty property to effectuate the abandonment activities. See Exhibit B at ¶ 6. 6. To condemn property interests under Section 7(h), Columbia must demonstrate that it holds a FERC certificate of public convenience and necessity, the property interests are necessary to the pipeline project certificated by FERC, and it has been unable to acquire the necessary property interests by agreement. Columbia has met these elements and is entitled to exercise its eminent domain power. 7. Columbia holds the required FERC certificate of public convenience and necessity for the project whereby it is abandoning portions of the Line 138 pipeline. See Exhibit A. Pursuant to that FERC certificate, Columbia is authorized to abandon by removal or in place an approximately 32.8 mile section of Line 138 located in Pennsylvania, West Virginia, and Maryland. Columbia is abandoning in place the portion of Line 138 and remove above ground appurtenances situated between Columbia Engineering Station 84+51 and Columbia Engineering Station 1816+35, including 4-inch-, 6-inch-, 8-inch-, and 16-inch-diameter pipeline within its existing 50-foot-wide right-of-way. 8. The rights condemned by Columbia are necessary for the safe and effective abandonment in place of Line 138 as certificated by FERC. See Exhibit A; Declaration of Tyler Hallinan, attached as Exhibit B. Temporary access to existing access roads and temporary Case 3:16-cv-00268-KRG Document 18 Filed 03/14/17 Page 3 of 7 - 4 - workspace are necessary for Columbia to safely and effectively accomplish the project and its activities in abandoning in place Line 138 and removing associated above ground appurtenances. 9. Columbia made offers to acquire the necessary property rights but has been unable to acquire all of the property rights by agreement from the defendants. See id. at ¶ 5. 10. Defendants object to the taking, however, defendants’ objections constitute collateral attacks on the FERC certificate or its finding that the easements condemned are necessary, or attempts to apply rules of Pennsylvania state law to this action proceeding under the federal Natural Gas Act and Federal Rule of Civil Procedure 71.1. None of the objections raised by defendants preclude the Court from ordering condemnation as authorized by the FERC certificate. 11. Columbia requires access to and possession of the property interests condemned by April 1, 2017. Id. at ¶¶ 8-9. Delaying the abandonment of the aging and deteriorating pipeline will expose the public and nearby landowners to unnecessary safety risks. Id. 12. Columbia will suffer irreparable harm if it is unable to begin the abandonment activities of the portions of the pipeline on defendants’ properties by April 1, 2017. Id. at ¶ 9. Columbia must access the properties to provide the safe and timely removal of gas from the pipeline and ensure that the abandonment activities are completed in time for Columbia to meet its contractual and regulatory requirements regarding repair of roads and rights-of-way. Id. at ¶¶ 9-12. 13. The public will also suffer irreparable harm if Columbia is unable to meet its access deadline because there is a public interest in the safe abandonment of aging and deteriorating pipelines and their associated appurtenances to improve the safety and reliability of the pipeline system. Id. at ¶¶ 14-16. Line 138 provides transportation of natural gas which Case 3:16-cv-00268-KRG Document 18 Filed 03/14/17 Page 4 of 7 - 5 - enables local distribution companies to meet the public’s demand for natural gas in Pennsylvania and the FERC determined that the abandonment of portions of Line 138 is necessary. Id. at ¶ 16. see also Exhibit A at pp. 9-10. 14. The defendants will not suffer any harm by the grant of immediate access to and possession of the temporary easement. Id. at ¶¶ 6-7, 17. Their properties are already encumbered by the existing easements and the pipeline to be abandoned is located on their properties. Id. at ¶ 7. The scope of the temporary easements condemned by Columbia is minimal – the easements condemned are only for temporary access to existing access roads and temporary workspace. Id. at ¶ 6. 15. The size of the easements condemned by Columbia is also minimal – on the Appalachian Timber property, Columbia is condemning temporary access to 25 feet of an access road. Id. On the McCarty property, Columbia is condemning temporary workspace of 0.1 acres and temporary access to approximately 2300 feet of an access road. Id. The duration of the temporary easements is also minimal - Columbia anticipates that the duration of the temporary easements will be approximately two weeks. Id. 16. In any event, granting immediate access will not affect the defendant’s right to receive just compensation. Id. at ¶ 17. 17. Columbia is prepared to post a bond equal to its estimate of the just compensation due to the defendant. Id. at ¶ 18. WHEREFORE, for the reasons in this Motion and the accompanying Memorandum of Law in Support, Columbia moves for entry of the attached Order granting partial summary judgment as to its authority to condemn and immediate access to and possession of the property interests held by defendants and condemned in this action. Case 3:16-cv-00268-KRG Document 18 Filed 03/14/17 Page 5 of 7 - 6 - REED SMITH LLP Dated: March 14, 2017 /s/ Nicolle R. Snyder Bagnell__ Nicolle R. Snyder Bagnell PA I.D. #87936 Stefanie L. Burt PA I.D. #312998 Thomas J. Galligan PA I.D. #319487 Reed Smith Centre 225 Fifth Avenue Pittsburgh, PA 15222 412-288-7112 nbagnell@reedsmith.com sburt@reedsmith.com tgalligan@reedsmith.com Counsel for Plaintiff Columbia Gas Transmission, LLC Case 3:16-cv-00268-KRG Document 18 Filed 03/14/17 Page 6 of 7 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Motion for Partial Summary Judgment and Immediate Access to the Easements Condemned of Plaintiff Columbia Gas Transmission, LLC has been served upon the following via the Court’s ECF system: Anne N. John John and John Attorneys at Law 96 East Main Street Uniontown, PA 15401 Dated: March 14, 2017 /s/ Nicolle R. Snyder Bagnell Case 3:16-cv-00268-KRG Document 18 Filed 03/14/17 Page 7 of 7 Case 3:16-cv-00268-KRG Document 18-1 Filed 03/14/17 Page 1 of 12 154 FERC ¶ 61,116 UNITED STATES OF AMERICA FEDERAL ENERGY REGULATORY COMMISSION Before Commissioners: Norman C. Bay, Chairman; Cheryl A. LaFleur, Tony Clark, and Colette D. Honorable. Columbia Gas Transmission, LLC Docket No. CP15-495-000 ORDER ISSUING CERTIFICATE AND APPROVING ABANDONMENT (Issued February 18, 2016) 1. On May 20, 2015, Columbia Gas Transmission, LLC (Columbia or Applicant) filed an application under section 7(b) of the Natural Gas Act (NGA)1 and Part 157 of the Commission’s regulations2 for approval to abandon by removal and in place a section of its Line 138 system and associated facilities in Fayette and Somerset Counties, Pennsylvania; Preston County, West Virginia; and Garrett County, Maryland (Abandonment Project). Columbia also requests pursuant to NGA section 7(c) a certificate of public convenience and necessity authorizing the construction and operation of a new lateral line for the purpose of maintaining service to a firm transportation customer. 2. As discussed in this order, the Commission grants the requested certificate and abandonment authorizations, subject to the conditions described herein. I. Background and Proposal 3. Columbia,3 a Delaware limited liability company with its principal place of business in Houston, Texas, is a natural gas pipeline company4 engaged in the 1 15 U.S.C. § 717f (b) (2012). 2 18 C.F.R. pt. 157 (2015). 3 Columbia is a wholly owned subsidiary of the Columbia Energy Group, which, in turn, is a wholly owned subsidiary of NiSource, Inc. 4 15 U.S.C. § 717a(6) (2012). Case 3:16-cv-00268-KRG Document 18-1 Filed 03/14/17 Page 2 of 12 Docket No. CP15-495-000 - 2 - transportation of natural gas in interstate commerce, subject to the Commission’s jurisdiction. Columbia operates approximately 12,000 miles of pipeline facilities located in the states of Delaware, Kentucky, Maryland, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia. 4. Columbia seeks authority to abandon in place and by removal an approximately 32.8-mile section of Line 138 located in Fayette and Somerset Counties, Pennsylvania; Preston County, West Virginia; and Garrett County, Maryland. Specifically, Columbia requests approval to abandon in place the portion of Line 138 and below ground appurtenances situated between Columbia Engineering Station 84+51 and Columbia Engineering Station 1816+35, including 4-inch-, 6-inch-, 8-inch-, and 16-inch-diameter pipeline within the existing 50-foot-wide right-of-way. In addition, Columbia proposes to abandon by removal approximately 0.18 mile of exposed pipeline, two meter stations, one odorizer, one siphon, five ground valves, and eight mainline valves. 5. Columbia states that this segment of Line 138 should be abandoned due to its age and condition. Columbia states that much of Line 138 consists of pre-1950s era pipeline, with several sections now exposed.5 Columbia asserts that the age of the pipeline and exposure have resulted in deterioration of the pipeline. According to Columbia, the deterioration has resulted in issues with reliability and increased maintenance costs. Moreover, Columbia predicts that continued operation of this section of Line 138 will require the operating pressure to be reduced such that Columbia will no longer be able to serve its customers. Columbia estimates that the total cost of abandoning the pipeline facilities will be $14.5 million. 6. In its application, Columbia explained that at that time there were two residential sales taps connected to the portion of Line 138 to be abandoned. Columbia explained that the residential sales tap consumers will be converted to an alternative energy source.6 7. Line 138 serves one firm transportation service customer, Columbia Gas of Pennsylvania (CPA). Accordingly, Columbia seeks approval pursuant to NGA section 7(c) for its proposed Lateral Construction Project, involving the construction of an approximate 3,450-foot, 2‐inch-diameter lateral extension within the existing 50‐foot- wide Line 138 right‐of‐way in order to maintain service to CPA. The lateral extension 5 Columbia states that certain portions of the pipeline were installed in the 1890s. 6 In its November 18, 2015 data request response, Columbia indicates that it has successfully reached an agreement with one of these consumers, the Camp Sonrise Mountain, regarding its conversion to an alternative energy source. Camp Sonrise filed on February 5, 2016, to withdraw its comments in the proceeding. Case 3:16-cv-00268-KRG Document 18-1 Filed 03/14/17 Page 3 of 12 Docket No. CP15-495-000 - 3 - within the Line 138 right-of-way will connect Columbia’s Line 1804 and Line 10240. Specifically, Columbia proposes to construct: (1) approximately 150 feet of 2-inch- diameter pipe from its Line 1804 and Line 10240 in Somerset County, Pennsylvania, to the Line 138 right-of-way; and (2) an additional 3,300 feet of 2-inch-diameter pipe along the Line 138 right-of-way to the CPA measuring station in Somerset County, Pennsylvania. The Lateral Construction Project will involve construction activities within the existing 50‐foot wide Line 138 right-of-way, acquisition of 50 feet of new right-of-way to connecting the rights-of-way of Lines 1804 and 10240, two new isolation valves on Lines 1804 and 10240, and a contractor/staging yard, all located in Somerset County, Pennsylvania. II. Notice, Interventions, and Protests 8. Notice of Columbia’s application was published in the Federal Register on July 8, 2015.7 The parties listed in Appendix A of this order filed timely, unopposed motions to intervene.8 9. Freda Yoder filed a comment expressing concerns over possible soil contamination associated with gas leakage on an adjoining property and requested that the pipeline should be removed in those areas, rather than being abandoned in place. 10. Gene Reichenbecher, a retail sales customer of CPA directly attached to Columbia’s Line 138, filed a comment expressing concerns over possible increases in energy costs he might incur due to the loss of access to the tap on the section of Line 138 to be abandoned. 9 11. The Commission will address the comments below. 7 80 Fed. Reg. 39,093 (July 8, 2015). 8 Timely, unopposed motions to intervene are granted by operation of Rule 214 of the Commission’s Rules of Practice and Procedure. 18 C.F.R. § 385.214(c) (2015). 9 Mr. Reichenbecher is a retail sales customer of CPA, which, in turn, is a firm transportation service customer of Columbia. CPA is a wholly owned subsidiary of NiSource, Inc. Case 3:16-cv-00268-KRG Document 18-1 Filed 03/14/17 Page 4 of 12 Docket No. CP15-495-000 - 4 - III. Discussion 12. Since the subject facilities have been or will be used to transport natural gas in interstate commerce subject to the Commission’s jurisdiction, the proposed abandonment, construction and operation of the facilities are subject to the requirements of section (b), (c), and (e) of section 7 of the NGA.10 A. Abandonment 13. Section 7(b) of the NGA provides that an interstate pipeline company may abandon jurisdictional facilities or services only if the Commission finds the abandonment is permitted by the present or future public convenience or necessity.11 14. When considering the criteria for abandonment under section 7(b), two important principles apply: (1) a pipeline which has obtained a certificate of public convenience and necessity to serve a particular market has an obligation, deeply embedded in the law, to continue to serve; and (2) the burden of proof is on the applicant to show that the public convenience or necessity permits abandonment, that is, that the public interest will in no way be disserved by abandonment.12 15. The Commission examines abandonment applications on a case-by-case basis.13 In deciding whether a proposed abandonment is warranted, the Commission considers all relevant factors, but the criteria vary as the circumstances of the abandonment proposal vary. The central focus of a NGA section 7(b) abandonment evaluation is not whether there is any harm to any narrow interest. Rather, the Commission takes a broad view in abandonment proceedings and evaluates proposed abandonment applications against the benefits to the market as a whole.14 10 15 U.S.C. § 717f(b), (c), (e) (2012). 11 15 U.S.C. § 717f(b) (2012). 12 See Michigan Consolidated Gas Co. v. F.P.C., 283 F.2d 204, 214 (D.C. Cir. 1960); Transcontinental Gas Pipe Line Corp. v. F.P.C., 488 F.2d 1325, 1328 (D.C. Cir. 1973). 13 Transwestern Pipeline Co. L.L.C., 140 FERC ¶ 61,147, at P 12 (2012). 14 See Southern Natural Gas Co., 50 FERC ¶ 61,081, at 61,222 (1990). See also Consolidated Edison Co. v. FERC, 823 F.2d 630, 643-644 (D.C. Cir. 1987) (“We agree with FERC that the ‘public convenience or necessity’ language of the NGA's (continued ...) Case 3:16-cv-00268-KRG Document 18-1 Filed 03/14/17 Page 5 of 12 Docket No. CP15-495-000 - 5 - 16. Columbia acknowledges that its proposal will affect some local consumers currently receiving gas through the existing system. At the time Columbia filed its application, the section of Line 138 proposed for abandonment contained two residential consumer taps and one tap currently used to provide service for CPA, which will continue to receive firm service through the proposed replacement facilities. Columbia acknowledges that two residential tap consumers will need to be converted to an alternative energy source. 17. While Columbia has reached agreement with one of the residential sales tap consumers, Columbia has not reached resolution with Mr. Reichenbecher and his three brothers who are the owners of property in Somerset County, Pennsylvania, and customers of CPA, which, in turn, is a customer of Columbia. We note that Mr. Reichenbecher does not receive a jurisdictional service from Columbia; CPA, which is Columbia’s firm transportation customer, has not protested these proceedings. Columbia has offered to convert Mr. Reichenbecher to an alternative energy source, but the two sides have not reached resolution. Columbia states that it is continuing negotiations to reach a mutually acceptable agreement with the Reichenbechers. While we hope those negotiations will be successful, the uncertainty regarding their outcome is not grounds for denying an abandonment which we find to be otherwise permitted by the public convenience or necessity. 18. Columbia states that the abandonment will not affect Columbia’s market area customers’ ability to meet their respective requirements. Columbia also asserts that the abandonment of Line 138 will have no adverse effects on Columbia’s firm service requirements or existing firm service obligations. 19. Because of the Lateral Construction Project discussed below, the abandonment of the Line 138 segment as proposed will have no adverse effect on Columbia’s ability to meet its jurisdictional customers' firm transportation service requirements or its existing firm transportation service obligations. The abandonment will also not affect Columbia’s market area customers’ ability to meet their respective requirements, as Columbia will still have in service several larger parallel mainline pipelines (Line 1804 and Line 10240) capable of transporting all firm requirements. 20. We also bear in mind Columbia’s concerns about addressing deterioration of the pipeline. The Abandonment Project will allow Columbia to address issues related to their aging infrastructure which could ultimately impact service to their customers. The Abandonment Project will also enable Columbia to reduce its current operating and abandonment provision envisions agency policy-making to fit the regulatory climate.”) (citation omitted). Case 3:16-cv-00268-KRG Document 18-1 Filed 03/14/17 Page 6 of 12 Docket No. CP15-495-000 - 6 - maintenance expenses and avoid costly repairs that could ultimately be reflected in its rates. Columbia represents that operating the specified sections of Line 138 in their current state for the long term would result in a perpetual lowering of operating pressure such that Columbia would eventually no longer be able to meet its existing service obligations. Columbia estimates the cost of replacing the aging pipeline to be prohibitively expensive, approximately $47.4 million. Alternatively, Columbia estimates that the cost of abandoning the pipeline will total approximately $14.5 million. 21. Balancing the benefits of the Abandonment Project against the minimal adverse impacts on Columbia’s existing customers, we find that Columbia’s abandonment is permitted by the public convenience or necessity, as conditioned in this order. B. Certificate Policy Statement 22. The Certificate Policy Statement provides guidance for evaluating proposals to certificate new construction.15 The Certificate Policy Statement established criteria for determining whether there is a need for a proposed project and whether the proposed project will serve the public interest. The Certificate Policy Statement explains that in deciding whether to authorize the construction of major new pipeline facilities, the Commission balances the public benefits against the potential adverse consequences. The Commission’s goal is to give appropriate consideration to the enhancement of competitive transportation alternatives, the possibility of overbuilding, subsidization by existing customers, the applicant’s responsibility for unsubscribed capacity, the avoidance of unnecessary disruptions of the environment, and the unneeded exercise of eminent domain in evaluating new pipeline construction. 23. Under this policy, the threshold requirement for existing pipelines proposing new projects is that the pipeline must be prepared to financially support the project without relying on subsidization from existing customers. The next step is to determine whether the applicant has made efforts to eliminate or minimize any adverse effects the project might have on the applicant’s existing customers, existing pipelines in the market and their captive customers, or landowners and communities affected by the construction of the new facilities. If residual adverse effects on these interest groups are identified after efforts have been made to minimize them, the Commission will evaluate the project by balancing the evidence of public benefits to be achieved against the residual adverse effects. This is essentially an economic test. Only when the benefits outweigh the 15 Certification of New Interstate Natural Gas Pipeline Facilities, 88 FERC ¶ 61,227 (1999), clarified, 90 FERC ¶ 61,128, further clarified, 92 FERC ¶ 61,094 (2000) (Certificate Policy Statement). Case 3:16-cv-00268-KRG Document 18-1 Filed 03/14/17 Page 7 of 12 Docket No. CP15-495-000 - 7 - adverse effects on economic interests will the Commission proceed to complete the environmental analysis where other interests are considered. 24. As stated, the threshold requirement under the Certificate Policy Statement is that the pipeline must be prepared to financially support a project without relying on subsidization from its existing customers. Under Certificate Policy Statement, it is not a subsidy for existing customers to pay for projects designed to replace existing capacity or improve the reliability or flexibility of existing service.16 As a consequence of abandoning a segment of Line 138, which we have found is permitted by the public convenience or necessity, Columbia must construct the new pipeline facilities to maintain firm service to CPA. 25. Because the Lateral Construction Project is designed to replace existing capacity and improve reliability, the Commission finds that requiring Columbia’s existing customers to pay for the costs of the project will not constitute a subsidy under the Certificate Policy Statement, and that Columbia’s proposal satisfies the threshold requirement. Further, as explained in the Certificate Policy Statement, when a project such as Columbia’s is necessary in order ensure the continued reliability of current services and will not create any expansion capacity for use by new shippers, Commission policy allows all of the costs of the project to be rolled into the pipeline company’s generally applicable system rates in a future rate case.17 26. Columbia states that the Lateral Construction Project is being constructed solely to maintain service to CPA, an existing firm transportation customer. Thus, the project should not adversely affect any existing services. Since no pipeline companies or their captive customers have filed adverse comments regarding Columbia’s proposal, we also find that the Lateral Construction Project will not have adverse impacts on any other pipelines or their customers. 27. The majority of the project will occur on Columbia’s existing Line 138 right-of- way. Therefore, we find the replacement project will have minimal adverse economic impacts on landowners or communities. 28. As a result of the Line 138 Abandonment Project, construction of a pipeline from Line 1804 and Line 10240 is necessary in order to maintain service to an existing firm transportation service customer. Balancing the benefit of continuing service to an 16 Certificate Policy Statement, 88 FERC ¶ 61,227 at n.12. 17 Id. See Kern River Gas Transmission Co., 153 FERC ¶ 61,302, at P 12 (2015). Case 3:16-cv-00268-KRG Document 18-1 Filed 03/14/17 Page 8 of 12 Docket No. CP15-495-000 - 8 - existing firm service customer against the minimal adverse impacts, we find that the Lateral Construction Projected is required by public convenience and necessity. C. Environmental Analysis 29. The Commission issued a notice of intent to prepare an environmental assessment and request for comments on environmental issues (NOI) on June 30, 2015. The NOI was published in the Federal Register18 and mailed to interested parties including federal, state, and local officials; elected officials; agency representatives; environmental and public interest groups; Native American tribes; local libraries and newspapers; and affected property owners. 30. We received comments during the public scoping process in response to the NOI from the Pennsylvania Department of Environmental Protection (Pennsylvania DEP) and one affected property owner. The primary issues raised during the scoping period were certification/permitting requirements and potential soil contamination from the proposed abandonment. 31. To satisfy the requirements of the National Environmental Policy Act (NEPA), our staff prepared an environmental assessment (EA) for the Abandonment Project and Lateral Construction Project. The analysis in the EA addresses geology, soils, water resources, vegetation, fisheries, wildlife, threatened and endangered species, land use, recreation, cultural resources, air quality, noise, safety, cumulative impacts and alternatives. All substantive environmental comments received in response to the NOI were addressed in the EA. The EA was placed into the public record on September 17, 2015. 32. The Pennsylvania DEP submitted general comments regarding permits that Columbia would be required to obtain, such as permits for dust control and waste disposal. Table 1 of the EA lists the permits that Columbia would be required to obtain for the Project, including permits from the Pennsylvania DEP. The EA addressed the Pennsylvania DEP’s general comments regarding dust control and waste disposal. 33. As stated in the EA, we received a comment from Ms. Freda Yoder who, noting there had been reports of gas leakage on an adjoining property, expressed concern regarding potential subsurface soil contamination. Ms. Yoder asked Columbia to confirm the absence of pipeline leakage in areas of the project where it is to be abandoned in place. Methane, the primary component of natural gas, is buoyant at atmospheric 18 80 Fed. Reg. 39,093 (July 8, 2015). Case 3:16-cv-00268-KRG Document 18-1 Filed 03/14/17 Page 9 of 12 Docket No. CP15-495-000 - 9 - temperatures. Thus, to the extent there has been any past leakage of natural gas from the facilities to be abandoned, such leakage would have been localized and of minimal risk to the surrounding environment, as the gas would have dissipated into the atmosphere. Once the facilities have been abandoned from use, there will be no potential for future gas leakage. 34. Based on the analysis in the EA, we conclude that if abandoned, constructed, and operated in accordance with Columbia's application and supplements, and in compliance with the environmental conditions in the appendix to this order, our approval of this proposal would not constitute a major federal action significantly affecting the quality of the human environment. 35. Any state or local permits issued with respect to the jurisdictional facilities authorized herein must be consistent with the conditions of this certificate. The Commission encourages cooperation between interstate pipelines and local authorities. However, this does not mean that state and local agencies, through application of state or local laws, may prohibit or unreasonably delay the construction or operation of facilities approved by this Commission.19 D. Conclusion 36. At a hearing held on February 18, 2016, the Commission on its own motion received and made a part of the record in this proceeding all evidence, including the application, and exhibits thereto, and all comments submitted, and upon consideration of the record, The Commission orders: (A) Permission and approval of the proposed abandonment by Columbia is granted, as more fully described in the application and in the body of this order. (B) A certificate of public convenience and necessity is issued to Columbia authorizing the construction of the facilities as described and conditioned herein, and as more fully described in the application. 19 See, e.g., Schneidewind v. ANR Pipeline Co., 485 U.S. 293 (1988); Dominion Transmission, Inc. v. Summers, 723 F.3d 238, 243 (D.C. Cir. 2013) (holding state and local regulation is preempted by the NGA to the extent they conflict with federal regulation, or would delay the construction and operation of facilities approved by the Commission); and Iroquois Gas Transmission System, L.P., 52 FERC ¶ 61,091 (1990) and 59 FERC ¶ 61,094 (1992). Case 3:16-cv-00268-KRG Document 18-1 Filed 03/14/17 Page 10 of 12 Docket No. CP15-495-000 - 10 - (C) The certificate authorized in Ordering Paragraph (A) above is conditioned on: (1) Columbia’s completing authorized construction of the proposed facilities and making them available for service within one year of the date of this order pursuant to section 157.20(b) of the Commission’s regulations; (2) Columbia’s compliance with all applicable Commission regulations including paragraphs (a), (c), (e), and (f) of section 157.20 of the Commission’s regulations; (3) Columbia’s compliance with the environmental conditions listed in the appendix to this order. (D) Columbia shall notify the Commission within 10 days of the date(s) of its abandonment(s) of facilities as authorized by this order. (E) Columbia is granted a pre-determination supporting rolled-in rate treatment for the costs of the project in its future general NGA section 4 rate proceeding, as more fully discussed herein, barring a significant material change in circumstances. (F) Columbia shall notify the Commission's environmental staff by telephone, e-mail, and/or facsimile of any environmental noncompliance identified by other federal, state, or local agencies on the same day that such agency notifies Columbia. Columbia shall file written confirmation of such notification with the Secretary of the Commission within 24 hours. By the Commission. ( S E A L ) Nathaniel J. Davis, Sr., Deputy Secretary. Case 3:16-cv-00268-KRG Document 18-1 Filed 03/14/17 Page 11 of 12 Docket No. CP15-495-000 - 11 - Appendix A Timely Intervenors Atmos Energy Marketing LLC Camp Sonrise Mountain Duke Energy Kentucky, Inc. Exelon Corporation, Inc. Independent Oil & Gas Association of West Virginia, Inc. National Fuel Gas Distribution Corporation National Grid Gas Delivery Companies New Jersey Natural Gas Company NJR Energy Services Company Piedmont Natural Gas Company, Inc. PSEG Energy Resources & Trade LLC Public Service Company of North Carolina UGI Distribution Companies Case 3:16-cv-00268-KRG Document 18-1 Filed 03/14/17 Page 12 of 12 Case 3:16-cv-00268-KRG Document 18-2 Filed 03/14/17 Page 1 of 6 Case 3:16-cv-00268-KRG Document 18-2 Filed 03/14/17 Page 2 of 6 Case 3:16-cv-00268-KRG Document 18-2 Filed 03/14/17 Page 3 of 6 Case 3:16-cv-00268-KRG Document 18-2 Filed 03/14/17 Page 4 of 6 Case 3:16-cv-00268-KRG Document 18-2 Filed 03/14/17 Page 5 of 6 Case 3:16-cv-00268-KRG Document 18-2 Filed 03/14/17 Page 6 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA COLUMBIA GAS TRANSMISSION, LLC, Plaintiff, v. TEMPORARY EASEMENTS FOR THE ABANDONMENT OF A NATURAL GAS TRANSMISSION PIPELINE ACROSS PROPERTIES IN SOMERSET AND FAYETTE COUNTIES, PENNSYLVANIA, OWNED BY MARK J. AND LINDA G. MCCARTY (PARCEL ID 42-38-0023 AND 16-18-005); APPALACHIAN TIMBER PRODUCTS, INC. (PARCEL ID 02-014- 038-00), and UNKNOWN PERSONS AND INTERESTED PARTIES, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 3:16-cv-268 ORDER Upon consideration of Columbia Gas Transmission, LLC’s Motion for Partial Summary Judgment and Immediate Access to and Possession of Easements Condemned, and the Memorandum of Law in Support, it is ORDERED that the Motion is GRANTED. Immediate access and possession of the following rights condemned on the property owned by defendants are granted to Columbia Gas Transmission, LLC: (1) temporary access to 25 feet of existing access roads on the Appalachian Timber property and 2300 feet of existing access road on the McCarty property, which Columbia must use to effectuate its activities in abandoning in place Line 138 and removing associated above ground appurtenances; and Case 3:16-cv-00268-KRG Document 18-3 Filed 03/14/17 Page 1 of 2 - 2 - (2) temporary workspace of 0.1 acres on the McCarty property to effectuate the abandonment. Plaintiff is to post a bond in the amount of ________________. ______________________ ______________________________ Date United States District Judge Case 3:16-cv-00268-KRG Document 18-3 Filed 03/14/17 Page 2 of 2