Senator Charles Schumer322 Hart Senate Office Building Washington D.C., 20510
Senator Kirsten Gillibrand478 Russell Senate Office Building Washington D.C. 20510
Dear Senator Charles Schumer and Senator Kirsten Gillibrand,
Now that a quorum has been restored to Federal Energy Regulatory Commission (“FERC”) it is more urgent than ever that you champion the call for hearings into FERC’s abuses of power and law and secure needed reforms. We have already shared with you a dossier documenting the many ways FERC is misusing its power to help pipelines, harm communities and undermine state authority. We write to share new shocking information which could have significant implications for the state of New York and makes very clear that investigation of FERC is vital for the protection of states’ rights.
Newly released documents secured through litigation discovery reveal that FERC intentionally concealed information from state permitting agencies and the public in an effort to mislead and influence permitting decisions in the Pipeline Company’s favor.
In the review of the Tennessee Gas Pipeline Company LLC’s (“Tennessee”) Orion Project (“Orion”), FERC deliberately concealed information from the Pennsylvania Department of Environmental Protection (“PADEP”) on a project alternative that would have greatly reduced the project footprint and its impact on water resources, and therefore could have had a substantial influence on the public and state perspective regarding Clean Water Act (“CWA”) Section 401 Certification. Importantly, in the case of Orion, it is clear that:
⇒ On or about July 10, 2016 FERC generated an internal Draft Environmental Assessment (EA) for Tennessee’s Orion Project. ⇒ In the Draft EA FERC identified and evaluated alternatives to the Orion Pipeline proposal. ⇒ As a result, the Draft EA included a detailed analysis regarding an Alternative which eliminated the need for the 12 miles of pipeline looping being proposed.⇒ The Draft EA included a detailed description of the Alternative and concluded that this Alternative “meets the purpose and need” of the Orion Project, and “is technically feasible.” ⇒ The Draft EA also concluded that the Alternative “would eliminate the need for 12.9 miles of new pipeline construction, which would eliminate 30 waterbody crossings, 13 road crossings, and impacts on wetlands and other land use impacts along the pipeline route.” ⇒ The internal Draft EA included a table showing the different impacts resulting from the Alternative in comparison to the proposed looping pipeline project. The analysis showed that while the Alternative had its own set of impacts necessary for full and thoughtful consideration, the pipeline proposal would inflict harmful impacts to 30 waterbodies, would have significant wetland impacts, as well as result in 222.6 more acres of total disturbed land, over 100 more acres of impact to agricultural lands, would traverse 2,100 feet of steep slopes, and would necessitate the long-term deforestation of between 9 and 19 more acres of upland forests.
Therefore, not only did the Draft EA conclude that the Alternative was technically feasible and would meet the purpose and need of the Orion Project, but that its environmental impacts would be significantly smaller thereby making it the environmentally preferred option. However, without reason or any explanation, FERC scrubbed this entire analysis of the Alternative from its final Environmental Assessment for the Orion project that was eventually released to the public, to other agencies, and to the State of Pennsylvania.
From these facts it is clear that FERC deliberately and intentionally scrubbed an analysis of a viable, technically feasible, and environmentally preferable alternative, so as to intentionally and inappropriately influence the state’s permitting decisions in order to secure the outcome sought by the Pipeline company, as opposed to the outcome that was best for the environment or the state.
The Delaware Riverkeeper Network secured these documents through litigation discovery. Had we not been involved in litigation we would have never exposed this heinous act. Given these devastating facts, and the reality that we could not have secured this information through the Freedom of Information Act, it seems likely that this is not the only project where FERC is intentionally concealing critical information from other permitting agencies and the public in order to advance its and the pipeline company’s chosen alternative.In fact, based on information and data we have on the Millennium Pipeline project, we believe it is highly likely that a similar scenario is playing out, right now, in the state of New York. Given that we are talking about the all-powerful FERC, it is critical that you as New York’s Senators rise up to help defend and vindicate the rights of the state.
Expert analysis demonstrates that the Millennium Pipeline Company and FERC are using false information to misrepresent the true size and scope of their project(s) and illegally segmenting their review.
There is strong evidence on the record supporting our belief that Millennium and FERC are currently engaged in a deception of the public and the state of New York, similar to what was exposed in the Orion project.Expert analysis, conducted by Accufacts Inc., confirms that Millennium has improperly split its Eastern System Upgrade project (ESU) from an overall planned expansion of its natural gas pipeline system in attempt to avoid a more rigorous comprehensive environmental review of the construction activity.Millennium’s ESU is characterized as an upgrade of its current pipeline project through the installation of 7.8 miles of 30-inch and 36-inch-diameter pipeline loop in Orange County, New York; a new compressor station in Sullivan County, New York; additional compression at the Hancock Compressor Station in Delaware County, New York; modifications and activities at other associated facilities.
But, according to expert review and information on the record, it is clear Millennium is installing an oversized 36 inch segment of pipe at the Neversink Crossing, as well as the 2 new compressor stations (bringing the total up to 4 compressors in a mere 50 miles), as just one step in a much larger expansion plan, one that includes a second pipeline along its 220 mile pipeline length.
As described in the attached expert report from Accufacts Inc.:
…. the Millennium Pipeline gas transmission mainline was installed and designed to operate as a 30-inch pipeline with a MAOP of 1,200 psig (see purple dashed MAOP lines on all Exhibits). Installing the 36-inch segment at an MAOP of 1,350 overbuilds the Project for its stated purpose. … Installing much larger diameter pipe rated for much higher MAOP than the current major system’s design signals further expansions are being anticipated or planned as a result of this Project.
Further, according to Accufacts:The combination of requested horsepower addition along with the much larger diameter 36-inch higher 1,350 psig MAOP … suggest additional project expansions are expected well beyond the needs stated in the Project application.
Laying parallel segments of looped pipeline to create second contiguous pipelines has become a common occurrence amongst interstate fracked gas transmission lines – it seems clear to the Delaware Riverkeeper Network from the evidence on the record that Millennium is planning for a mass expansion of the Millennium pipeline, including significant looping to create a future second line.
As the Accufacts report states: “further expansion projects are likely or already planned in the future operation of Millennium Pipeline.”
It is important to also note that the Millennium ESU, Valley Lateral and CPV projects are also part of this integrated whole that should have been presented to FERC and the New York State Department of Environmental Conservation (“NYSDEC”) and reviewed as a single project for purposes of the Clean Water Act and Clean Air Act approvals. But FERC failed to order Millennium to accurately present the complete project to the state, despite expert reports and comments from the US Environmental Protection Agency demonstrating this need.
We believe that Millennium is not only engaged in a deliberate deception as to the scope of its project today, but has, in the past, with the full awareness and support of FERC, engaged in similar misleading behavior and as a result has been able to piecemeal together a series of approvals, including a new compressor station in Minisink NY in 2012 and a new compressor station in Hancock in 2013. It seems clear that Millennium and FERC could not have received approval had the state and the public been aware of the full extent of the project plans the company was seeking to pursue.
In a July 27, 2017 letter to FERC, Congressman Pallone and Senator Cantwell highlight concerns that false information provided to FERC by pipeline companies is being used by the Commission as a basis for granting those companies certificates of public convenience and necessity for interstate natural gas pipelines, resulting in unjust use of eminent domain. Congressman Pallone and Senator Cantwell also raise questions over “the adequacy of [pipeline companies] information disclosure,” their “compliance with environmental and safety regulations,” as well as FERC’s overall ability to ensure that their assessments of pipeline certificate applications are “based on complete and accurate information,” their history of pipeline certificate approvals, and their consideration of existing pipelines during the review of new projects. While we greatly appreciate the leadership of Congressman Pallone and Senator Cantwell in asking for investigation into these vital questions, given FERC’s history of bias towards pipeline companies, we do not believe that it is appropriate for the agency to be tasked with the investigation of these issues.
We ask that you call for investigations and hearings into FERC’s intentional efforts to undermine state authority over pipeline projects, as well as investigating its other abuses. And we ask that you join us in holding a press conference to announce the call for investigations into FERC’s harmful and illegal behavior.