Posted to the Docket April 22, 2016, by Wiley Rein on behalf of HALT:
RE: PennEast Pipeline Company, LLC, Docket No. CPI5-558-000
April 20, 2016 Conference Call Between FERC, Tetra Tech and PennEast
Dear Ms. Bose:
On April 21, 2016, FERC submitted to Docket No, CPI5-558-000 the Meeting Minutes of a conference call between representatives of PennEast Pipeline Company, LLC (PennEast), Tetra Tech, and the Federal Energy Regulatory Commission (FERC) that took place April 20, 2016. The one-page summary of the call does not disclose the real substance of the call or provide adequate information regarding the details of the conversation between PennEast and FERC. Specifically, the summary states that one item discussed were “inconsistencies in text and tables” and another was “some instances of environmental information missing for the new route modifications.” These statements are too vague to inform intervenors about the specific aspects of PennEast’ s application that were discussed during the call.
The so-called “Meeting Minutes” fail to state or explain why FERC staff violated its own rule barring off-the-record or ex parte communications with an applicant, Rule 2201, 18 CFR 385.2201- Rules governing off-the-record communications; or, in the alternative whether this ex parte communication was covered by one of several narrow exceptions in Rule 2201 Paragraph (e). And, even if an exception to ex parte communications bar is relevant, the Meeting Minutes do not adequately demonstrate whether FERC staff complied with Paragraph that requires any document obtained during an ex parte communication be promptly submitted to the Secretary and placed in the decisional record of the relevant Commission proceeding.
Based on FERC’s April 21, 2016 filing, it appears that FERC staff may have violated the ex parte prohibition of the Administrative Procedure Act, section 557(d)(1), which also requires that agency proceedings, such as review of a Section 7 Application for a Certificate of Public Necessity and Convenience, be determined on the record after opportunity for an agency hearing. When communications prohibited by the AP A occur, the agency must place on the record “memoranda stating the substance of all such oral communications.” 5 U.S.c. 557(d)(I). The Meeting Minutes FERC filed is not a memorandum and only vaguely addresses the substance of the communications.
HALT – PennEast (HALT) is a non-profit organization comprised of over seventy homeowners in Hunterdon and Mercer Counties in New Jersey who would be affected by PennEast’s proposed pipeline route. HALT and many of its members have intervened in the FERC proceeding for PennEast’s application. HALT is uniquely qualified to discuss the environmental, historical, cultural, and economic impacts the pipeline will have because its members reside in the impacted area. In addition, HALT is qualified to verify the accuracy of PennEast’s information regarding milepost locations and acreages, which the Meeting Minutes stated were inconsistent in PennEast’s filings, because HALT’s members own the parcels for which PennEast is providing the incorrect information. Without more details regarding the specific problems raised during the conference call, HALT is incapable of knowing whether FERC addressed any or all of the inaccuracies that HALT itself has found in PennEast’s filings, which deprives HALT of its ability to fully participate in the FERC proceedings, ensure the accuracy of information provided by PennEast, and protect the interests of its members as impacted landowners.
HALT therefore requests FERC disclose the following additional information regarding the April 20 conference call to HALT and place the information on the Record for CP15-558-000:
- All notes regarding the specific omissions and inconsistencies in PennEast’s data responses that gave rise to call.
- For the attorney present on the call, Tamara Brown, Esq., please provide the name of her firm, whether she is an attorney of record in CP15-558-000, whether she is licensed to practice law in any State.
- Provide the names of any other FERC staff or attorneys who participated in or listened into the call.
- Provide all documents exchanged before or after the call.
If you have any questions about this request, please email or call me. Thank you in advance for your assistance.
Counsel for HALT-PennEast
To see the document on FERC, please go HERE