united states of america before the federal … · pipeline system into the higher pressure empire...

UNITED STATES OF AMERICA BEFORE THE

FEDERAL ENERGY REGULATORY COMMISSION

National Fuel Gas Supply Corporation ) Docket Nos. CP15-115-000 Empire Pipeline, Inc. ) CP15-115-001

MOTION FOR LEAVE TO ANSWER AND ANSWER OF NATIONAL FUEL GAS SUPPLY CORPORATION AND EMPIRE PIPELINE, INC.

Pursuant to Rules 212 and 213 of the Rules of Practice and Procedure of the Federal

Energy Regulatory Commission (Commission), 18 C.F.R. 385.212 and (2013), National

Fuel Gas Supply Corporation (National Fuel) and Empire Pipeline, Inc. (Empire)

(collectively, Applicants) hereby move for leave to answer and answer the comments filed by

various landowners, non-governmental organizations, and state, federal and local governmental

agencies (Stakeholders), within which comments Stakeholders raise concerns regarding the

Commission Staffs July 27, 2016 Environmental Assessment (EA) for the Northern Access

2016 (Project).1 Applicants, to the extent required, respectfully request waiver of Rule 213s

prohibition of answers. Answers are permitted when they provide useful information for the

resolution of issues pending before the Commission.2 Applicants answer clearly meets this

standard by addressing only the specific issues raised in the Stakeholders comments.

In support hereof, Applicants state as follows:

1 The Commission issued Notice of its Environmental Assessment on July 27, 2016, which Notice set August 26, 2016 as the deadline for comments, see Docket No. CP15-115-000, Accession No. 20160727-3023.

2 See, e.g., Equitrans, L.P., 146 FERC 61,143, at P 4 (2014); Gulf South Pipeline Company, LP, 14 6FERC 61,149, at P 6 (2014); and Louisiana Public Service Commission v. Entergy Services, Inc., 146 FERC 61,153 at P 24 (2014).

20160920-5150 FERC PDF (Unofficial) 9/20/2016 4:57:06 PM

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BACKGROUND

On March 17, 2015, Applicants submitted an application (Application), pursuant to

Sections 7(b) and 7(c) of the Natural Gas Act, for a certificate of public convenience and

necessity for the construction, operation, and maintenance of a natural gas transmission pipeline

and related facilities in McKean County, Pennsylvania and Allegany, Cattaraugus, Erie, and

Niagara Counties, New York, and for the requisite authorization to abandon certain related

facilities, collectively referred to as the Northern Access 2016 Project (Project). The Project

facilities will specifically include the following: (i) National Fuels construction of 96.49 miles

of 24-inch diameter pipeline, beginning from Sergeant Township, McKean County,

Pennsylvania, and ending at National Fuels existing Porterville Compressor Station in the Town

of Elma, Erie County, New York; (iii) National Fuels installation of an additional 5,350

horsepower of compression at the existing Porterville Compressor Station; (iii) National Fuels

construction of a interconnect station with Tennessee Gas Pipeline in the Town of Wales, Erie

County; (iv) Empires construction of a new 22,214 horsepower compressor station adjacent to

Killian Road in the Town of Pendleton, Niagara County, New York; (v) Empires construction of

approximately 2.07 miles of new 16-inch and 24-inch pipeline in the Town of Pendleton,

Niagara County, New York; and (vi) Empires construction of a new natural gas dehydration

facility on Liberty Drive in the Town of Wheatfield, Niagara County, New York, together with

(vii) related auxiliary facilities, all of which will enable Applicants to provide 497,000

dekatherms per day of incremental firm transportation capacity to markets in the northeastern

United States and Canada.

After Applicants submittal of the Application, and in response to concerns raised by

community stakeholders about Empires initial preferred location for its Pendleton Compressor

I.


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Station, Empire secured an option to purchase an alternative parcel located on Killian Road,

within an industrially zoned area in Pendleton, New York (the Killian Road Site). On

November 2, 2015, in order to reflect this revised preferred location for the Pendleton

Compressor Station to the current Killian Road site, as well as to provide supplemental pipeline

routing and facility changes, Applicants submitted an amendment to the Application (the

Application Amendment).

On July 27, 2016, after over two years of environmental review (commencing with

Applicants acceptance into the Commissions pre-filing process in Docket No. PF14-18 in July

2014), Commission Staff published their EA for the Project, which concluded that the

Commissions approval of the proposed project, with appropriate mitigating measures, would

not constitute a major federal action significantly affecting the quality of the human

environment and recommended that the Commissions Order contain a finding of no

significant impact. In connection with the publication of the EA, Commission Staff solicited

comments on the EA, with a deadline of August 26, 2016 (the EA Comment Period).

II.

ANSWER

In connection with the EA Comment Period, various community stakeholders, federal

and state agencies, and local agencies/municipalities, as well as nongovernmental organizations,

submitted comments concerning the EA. In order to provide the Commission with further

clarification and information with respect to various questions and issues raised within these

comments, and in order to correct various inaccuracies and misstatements contained within such

comments, National Fuel provides its answer in the form of two response documents the


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attached Appendix A and Appendix B, both incorporated herein by reference. The first,

Appendix A, contains Applicants answers to federal, state, and local agency/municipality

comments on the EA, including the U.S. Fish & Wildlife Service and the New York State

Department of Environmental Conservation. The second, Appendix B, contains Applicants

answers to various community stakeholder comments, as well as answers to comments submitted

by non-governmental organizations, such as the Allegheny Defense Project, Appalachian

Mountain Advocates, Heartwood, and the Pennsylvania Alliance for Clean Water and Air.

[intentionally left blank]


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III.

CONCLUSION

For the reasons set forth above, Applicants urge the Commission to permit its Answer,

and, for the reasons set forth in their Application, and the Application Amendment, request

issuance of a certificate of public convenience and necessity authorizing the Northern Access

2016 Project.

Respectfully submitted,

National Fuel Gas Supply Corporation Empire Pipeline, Inc.

By: /s/ Kenneth Webster

Attorney National Fuel Gas Supply Corporation Empire Pipeline, Inc. 6363 Main Street Williamsville, NY 14221 Telephone: (716) 857-7067 Facsimile: (716) 857-7206 [email protected]

Dated: September 20, 2016


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CERTIFICATE OF SERVICE

I hereby certify that I have this day served, in accordance with the provisions of Rule 2010 of the Commissions Rules of Practice and Procedure, the foregoing document upon each person designated on the official service list compiled by the Secretary of the Commission in this proceeding.

Dated at Williamsville, New York this 20th day of September, 2016.

/s/ Janet R. Bayer Janet R. Bayer National Fuel Gas Supply Corporation and Empire Pipeline, Inc. 6363 Main Street Williamsville, New York 14221 Telephone No. (716) 857-7429


National Fuel Gas Supply Corporation and Empire Pipeline, Inc. Northern Access 2016 Project

Docket Nos. CP15-115-000 and CP15-115-001

Appendix A


Appendix A

National Fuel Gas Supply Corporation and Empire Pipeline, Inc. (collectively, National Fuel) Response to Comments from State, Federal, and Local Agencies Concerning Environmental Assessment Issued July 27, 2016 Regarding the Northern Access 2016 Project


Page | 1

Page Subject Comment Response I. State, Federal, and Local Agencies A. New York State Department of Environmental Conservation (NYSDEC) Letter, dated August 25, 2016 2 NYSDEC

Review and Approvals

Federally-delegated or authorized permits, such as a . . . SPDES Permit must also be . . . approved and granted by NYSDEC and FERC typically directs applicants to obtain other state permits that are inextricably connected to the WQC.

The Natural Gas Act comprehensively regulates the field of interstate transportation and sale of natural gas in interstate commerce. Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300-301 (1988). From this comprehensive federal scheme, Congress carved out for states an authority, under Section 401 of the Clean Water Act, 33 U.S.C. 1341, to certifying whether discharges from a project proposed under the Natural Gas Act will comply with, among other things, federally approved state water quality standards. See 33 U.S.C. 1341(a) (listing federally approved water quality standards under Section 1313 of the Clean Water Act). For any water quality standard to become federally enforceable under the Clean Water Act, it must be approved through the process laid out in 33 U.S.C. 1313(a)-(c). New Yorks federally approved water quality standards are limited to those contained in 6 NYCRR Subparts 700-706 and 800-941. New Yorks Environmental Conservation Law, including Articles 15 and 24, have never been approved as federal water quality standards. Therefore, since they stand outside the Clean Water Act protectorate established by Congress under 33 U.S.C. 1341(a), they are preempted under the Natural Gas Act.

Although NYSDEC argues that permits issued under Articles 15 and 24, as well as SDPES permits, are inextricably connected to its authority to issue a Water Quality Certification (WQC) under Section 401, the New York Court of Appeals has unequivocally rejected this claim, holding that the Environmental Conservation Law requirements may not be considered as part of NYSDECs WQC review. Niagara Mohawk Power v. NYSDEC, 624 N.E.2d 146 (NY 1993). This is equally true for all other New York regulations or requirements that are not federal water quality standards, such as those involving riparian vegetation clearing and re-planting, invasive plant species management, wetlands re-seeding, stream bank disturbance, temporary bridge crossings, and pipeline burial depths. According to Niagara Mohawk, none of these issues are properly part of NYSDECs WQC consideration.

Based on the above, the Commission should make it clear on the record that any attempt by NYSDEC to impose conditions on the proposed Project that are outside of New Yorks federally approved water quality standards and conflict with those established by the Commission are preempted by the Natural Gas Act.

NYSDEC has since argued in litigation that its powers under the WQC are much broader than those described in Niagara Mohawk Power. It has identified PUD No. 1 of Jefferson County v. Washington Dept of Ecology, 511 U.S. 700 (1994) as effectively freeing it to enforce all state regulations with even the most tenuous relationship to water quality issues through Section 401(d), allowing states to include any other appropriate requirement of State law in a WQC. This badly misreads Jefferson County. There, the U.S. Supreme Court held that the term any other appropriate requirement of State law


Appendix A



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Page Subject Comment Response under Section 401(d) encompassed federally approved water quality standards, which are not explicitly

listed in Section 401(d)s discussion of WQC conditions. Id., 511 U.S. at 713 (State water quality standards adopted pursuant to 303 are among the other limitations with which a State may ensure compliance through the 401 certification process.). Nothing in Jefferson County endorses NYSDECs theory that it has free reign to impose conditions and requirements beyond its federally approved water quality standards. Nor has a subsequent New York case cited in litigation by NYSDEC justified a contrary conclusion. In dicta, In re Eastern Niagara Power Project Alliance, 42 A.D.3d 857 (3d Dept 2007) speculated that Jefferson County may have extended the authority of state agencies under Clean Water Act 401 to reviewing the activities of hydroelectric power facilities but did not extend WQC consideration beyond the limited bounds of water quality standards in the context of FERC licensing proceedings as this would constitute an intrusion into an area preempted by the federal statute. Id. at 860 (internal quotations omitted). NYSDEC has made much of its power to block a FERC Certificate of Necessity and Public Convenience, but it may only do this within the bounds of federally approved water quality standards. This conclusion, limiting a States WQC authority to only its federally approved water quality standards, harmonizes both the language of Section 401(d) and the comprehensive nature of the Natural Gas Act. Section 401(d) authorizes States to include any other appropriate requirement of State law in a WQC. NYSDECs expansive view of this phrase ignores the word appropriate. States may issue WQCs for all federal licenses and permits. 33 U.S.C. 1341(a). This includes a wide array of federal regulatory programs and what may be appropriate in one circumstance will not be appropriate in another. In this instance, National Fuel is seeking a Certificate of Necessity and Public Convenience under the Natural Gas Act, a comprehensive federal regulatory scheme that governs, among other things, conditions on the construction of interstate natural gas pipelines based on extensive environmental resource reports. 15 U.S.C. 717f(c); 18 C.F.R. 380.12, 380.15(e). Thus, the imposition of state permits, approvals, or regulations outside of the Clean Water Acts federal water quality standard approval process would not be appropriate as it would necessarily impinge on the Natural Gas Acts comprehensive regulation of the field. In other words, to the extent that NYSDEC has any discretion outside of federally approved water quality standards, that discretion would be at its nadir under the Natural Gas Act.


Appendix A



Page | 3

Page Subject Comment Response National Fuel has expended significant time, effort, and cost in cooperating with NYSDEC on obtaining

a WQC, including applying for permits under the Environmental Conservation Law even though it is National Fuels position that they are not legally required. The Commission, through conditions listed in Certificates, routinely requires applicants to obtain all necessary or applicable permits and approvals prior to commencing construction. See, e.g., Constitution Pipeline Company, LLC, 149 FERC 61,199 (2014) P 37-38, 50-51. The Commission, however, rarely specifies what permits or approvals are necessary or applicable. National Fuel requests that the Commission should make it explicitly clear that no New York permit, approval, or regulation is necessary or applicable unless they are properly imposed through authority granted to the States by Congress under federal law (i.e., the Clean Water Act or the Clean Air Act). Thus, if National Fuel does not ultimately obtain Article 15 and Article 24 permits, or comply with conditions purportedly imposed by NYSDEC outside of its delegated federal authority, then National Fuel will not be barred from proceeding with constructing the proposed project.1

2 NYSDEC Water Withdrawal Permit

[A] NYSDEC water withdrawal permit would be required for the anticipated withdrawal of 3,336,313 gallons of water from Cattaraugus Creek.

Cattaraugus Creek is the proposed water source for hydrostatic testing a segment of the Mainline Pipeline. The 3,336,313 gallons referenced in NYSDECs comments represent the total volume of the segment of pipeline to be hydrostatically tested. However, to test this segment, National Fuel is planning to divide this portion of the pipeline into 6 separate test sections, isolating the smaller test sections and testing them individually and separately. National Fuel plans to withdraw and re-use a much lower volume of water than 3.3 million gallons and to push (or jump) the test water from one section to the next. The largest test section in this segment will require 1.1 million gallons. For this and potentially other simultaneous test sections or needs, National Fuel also does not anticipate withdrawing more than a total of 1.5 million gallons from Cattaraugus Creek. National Fuel does not plan to withdraw an average of 100,000 gallons or more per day in any consecutive 30-day period, or more than 3 million gallons in a consecutive 30-day period. Accordingly, a NYSDEC Water Withdrawal Permit will not be required.

1 With respect to Table A.8-1, the EA states that National Fuel must obtain all necessary permits and approvals relating to construction and operation of the Project, regardless of whether they appear in the table or not. EA at 19. Thus, Table A.8-1 should be regarded as an illustration of which permits and approvals may be necessary or applicable and not explicitly required under either the Certificate or NEPA.


Appendix A



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Page Subject Comment Response 2 NYSDEC

Review and Approvals

Along with the WQC application and the Air State Facility permit application, the Department also intends to rely upon the NEPA EA in making any permit determinations and currently the EA does not provide the necessary analysis for this purpose.

National Fuel takes issue with NYSDECs statement, which presumes that FERCs independent analysis in the (487 page long) EA is the only analysis regarding water quality impacts. Obviously, NYSDEC does not intend to rely just on the EA in making its determination on National Fuels Water Quality Certificate Application and Air Facility Registration Application, but also on the completely separate information and analyses provided in such applications and related Supplemental submittals. Based on the comprehensive nature of these materials, as well as the analysis in the EA, National Fuel disagrees that NYSDEC needs any further information to process such applications. Furthermore, National Fuel notes that under NEPA, FERC has an independent but overlapping duty to determine if there are significant environmental impacts to water quality, including the potential for violation of water quality standards. Calvert Cliffs Coord. Comm. v. U.S. Atomic Energy Commn, 449 F.2d 1109 (D.C. Cir. 1971) (reviewing agency may not abdicate its duty to review proposed projects impact on water quality standards simply because a state will review for compliance with water quality standards under the Clean Water Act); U.S. Dept of Interior v. FERC, 952 F.2d 538 (D.C. Cir. 1992) (rejecting claim that the Commissions review of projects water quality standards under NEPA interfered with State water quality certification under the Clean Water Act); see also Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th Cir. 1998) (remanding EA for failing to take a hard look at potentially significant impacts to water quality). Based on the voluminous information submitted by National Fuel, including its FERC resource reports outlining construction and stream crossing methods, responses to FERC data requests, the NYS Water Quality Certificate Application, National Fuels Supplement to such Application, Erosion and Sediment Control & Agricultural Mitigation Plan, Inadvertent Return Contingency Plan for Horizontal Directional Drilling, and any additional conditions that will be placed on the Certificate (e.g., site-specific crossing plan in the event of an HDD failure), FERC should explicitly conclude, for purposes of NEPA, that there should be no violation of state water quality standards.

2 NYSDEC Review and Approvals

To the extent the project impacts endangered species or their habitat, the Department recommends that National Fuel obtain an endangered species take or incidental take permit to address potential impacts to these species.

Based on the results of species specific surveys completed to date, and various National Fuel commitments, National Fuel believes that the Project will avoid the likelihood and possibility of incidental take of threatened and endangered species. Furthermore, NYSDEC has had National Fuels Section 401 Water Quality Certification Application, and Article 15 and 25 Permit Applications in hand since March 2, 2016, and has not, to date, identified or suggested to National Fuel that an incidental take permit is warranted with respect to any specific species.


Appendix A



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Page Subject Comments Response 3 Special

Pipeline Construction Procedures

The Department will not approve as part of a WQC the placement of raised fill in a stream that is 6 higher than then stream bed. Such an action will wash away and result in a water quality violation.

National Fuels standard stream crossing backfill methods do not involve leaving raised fill 6 inches higher than the natural ground surface (crowning the pipeline trench) in stream beds. Backfill methods in uplands do involve crowning, but National Fuel does not propose to crown the pipeline trench in streams.

4 Surface Water Impacts

The Department will not authorize temporary stream crossings for access roads and the main pipeline path using culverts. Only free span temporary bridges that do not involve the use of any fill within waterbodies will be authorized as a part of the WQC.

Temporary bridges will be installed across almost all identified streams crossed by the Project. Each stream, depending on its width and stream bank profile, will be bridged in a manner that minimizes its impact on stream banks and riparian vegetation, while still allowing the pipeline to be constructed in a safe and environmentally sound manner. In accordance with NYSDECs preferences, National Fuel plans to install equipment crossing structures that minimize in-stream disturbance and footprint/streambed occupancy, and as such will avoid the use of culverts covered with stone in streams. National Fuel will use wooden mats, bridge mats, or articulated mats or fabricated portable bridges. Narrow streams (e.g., 10 feet wide or less) will generally be crossed in a single span configuration. For intermediate length stream crossings (e.g., those that exceed the length of available timber mats), center supports consisting of one or more culvert pipes, or concrete blocks, and/or additional wooden mats, will be used to support a series of mats to cross the stream. For large, wider streams, or for streams that may experience a large amount of sustained construction equipment and vehicle traffic, temporary portable bridges (or a series of portable bridges) in combination with wooden mats may be employed.

4 Surface Water Impacts

The loss of a naturally fully vegetated riparian buffer will negatively affect adjacent stream quality when less than 100 feet wide. The creation of a permanent ROW will create unmitigated long term impacts that negatively affect stream ecology.

National Fuel acknowledges NYSDECs concern regarding clearing of riparian buffer for ROW. However, the incremental clearing of a ROW may not in all cases meaningfully represent a significant source of thermal impact, nor does focusing on this factor alone properly acknowledge other land use factors along the stream and watershed which may contribute more significantly to warming of streams. For example, the amount and significance of warming due to clearing shade over coldwater streams and restoration of the ROW to a fully revegetated surface may be less than the warming resulting from typical agricultural activities (including farm ponds), roads, and other impervious surface development near coldwater streams in the same watershed. Further, the magnitude of any warming due to increase in


Appendix A



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Page Subject Comments Response ROW widths can vary depending on the widths and depths of the stream, the presence and extent of other

existing cleared riparian areas along the stream, and other factors. National Fuels NYSDEC Section 401 Water Quality Certification Application proposes to replant riparian areas along coldwater trout streams in New York where overhanging vegetation needs to be cleared to install the Project. As a result of the proposed dry stream crossing measures, streambank and bottom restoration and restoration measures, and the proposed post-construction mitigation plantings, National Fuel believes impacts as a result of clearing vegetated riparian buffer will be minimal.

4 Fisheries of Special Concern and Essential Fish Habitat

Pipeline exposure is . . . a risk factor long term and during storm events is not buried enough . . . National Fuel is in the process of completing a scour analysis, as a component of the WQC application demonstrating that exposure will not occur on a site specific basis.

At the request of the NYSDEC, National Fuel completed a Vertical Adjustment Potential (VAP) analysis for potential scour, as described in Section 4.1.3 of National Fuels September 9, 2016 Supplement to Joint Application for Permit (Supplement) to the NYSDEC and U.S. Army Corps of Engineers, and Appendix J of same. See Accession No. 20160913-5328 for CP15-115-000 and CP15-115-001. As noted in the Supplement, National Fuel has already committed to installing the pipe a minimum of six (6) feet below the stream bottom at all stream crossings, which is greater than Federal Safety Code requirements. National Fuels VAP analysis determined that for six streams, the pipe would need to be installed deeper than 6 feet to avoid any exposure potential during an extreme scour event. Those streams and the recommended depths of cover are:

S7a Deer Creek (6.7 feet minimum) S26b McKinstry Creek (6.7 feet minimum) S41b Wolf Creek (6.6 feet minimum) S075 Oil Creek (7.4 feet minimum) S096 UNT to Five Mile Creek (6.1 feet minimum) S284a Dodge Creek (8 feet minimum)

National Fuel will install the pipe at these six crossing with a depth of cover no less than indicated in the bullets above. The complete VAP analysis for all streams including methods and results is provided in the aforementioned Attachment J.


Appendix A



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Page Subject Comment Response 4 Waterbodies

and Wetlands The EA should identify the need for a mitigation plan for all cold water stream crossing locations to ensure that riparian vegetation necessary to maintain thermal stream conditions is maintained.

See response to above comment on Page 4 regarding stream water quality. National Fuel has proposed a mitigation plan for coldwater streams in its NYSDEC Section 401 Water Quality Certification Application.

5 Waterbodies Crossed by HDD

It is obvious that . . . the proposed HDD crossings have been driven by the need to cross major highways, such as Interstate 86 and State Route 400, and not for the primary purpose of eliminating stream impacts.

Determining the best method to cross a stream involves a site specific analysis for each stream and its surroundings. This concept has been well explained in National Fuels prior correspondence and submittals to NYSDEC, including National Fuels trenchless crossing analyses and matrices and other supporting documents. NYSDECs comment makes the presumption that crossing streams via the HDD method is somehow vastly superior to dam and pump, dry flume, coffer dam or other methods. These dry open cut methods were developed over decades, and are recognized by regulators and contractors alike as best practice, in that they allow construction through the stream bed in effectively dry conditions, or with limited seepage that is entirely contained between upstream and downstream dams, with such crossings completed in a very short period of time (usually within 24-48 hours) Streams that are co-located in close proximity to other features, such as roads, railroads, steep topography etc., are significantly complicated by the close presence of these other features. Among other things, these situations create access constraints, lateral support issues, limited workspace, and other constraints that greatly disrupt and impact the entire sequence of construction. Thus, it is incorrect for the NYSDEC to suggest that the decision to directionally drill streams that are co-located near major transportation infrastructure somehow discredits National Fuels crossing method selection. The motivation for any technique selected, whether HDD or otherwise, is to determine the best and safest technique for crossing the stream, while affording maximum protection to the stream and the surrounding area. Moreover, NYSDECs statement appears to be driven by a presumption that trenchless crossing methods are per se superior that other crossing methods from and environmental impact perspective. The agency, however, has not prescribed such a presumption through any regulations or guidance documents, or provided citation to any technical reports to support such presumption.


Appendix A



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Page Subject Comment Response 5 Wetland

Resources EA states that just three wetlands are associated with the EMP-03 route whereas there appear to be ten or more federal wetlands (one of which is also state-regulated, Wetland TE-6) associated with that route according to recent wetland delineation shape files. Further, Appendix E does not summarize wetland crossings for the EMP-03 line. . . . [T]he EA should analyze . . . potential impacts to these wetlands.

National Fuel has provided FERC and NYSDEC with the additional/supplemental results of environmental surveys along the EMP-03 Pipeline, in the form and context of National Fuels Joint Application for Section 401 Water Quality Certification and Article 15 and Article 24 Permits, and its related Supplement. The limited wetland impacts associated with the construction of EMP-03 would not change the overall conclusions of the EA.

5 Wetland Resources

The Impacts and Mitigation sub-section lacks reference to landscape-level avoidance and minimization of wetland impacts achieved through National Fuels route siting process . . . Department staff believe that is a significant shortfall in the EA which needs to be addressed before the project can be approved in a manner consistent with Corps of Engineers and NYSDEC permit issuance standards. It should be noted that the USFWS letter dated August 19, 2016 has expressed a similar concern.

The Supplement to National Fuels Joint Application for 401 Water Quality Certification and Article 15 and Article 24 Permits to the NYSDEC (submitted to NYSDEC on September 9, 2016 and filed with FERC on September 13, 2016) contained an appropriate description of National Fuels avoidance and minimization measures for wetland impacts, via National Fuels route siting process, as well as other means. In particular, National Fuels siting process involved an embedded biologist on the pipeline route selection engineering team, locating the pipeline parallel and adjacent to existing right-of-way to the maximum extent practicable, siting extra workspace areas to avoid wetlands to the extent possible, re-routing the pipeline and making workspace modifications in response to NYSDEC comments and concerns, as well as other measures. See Sections 5.1, 5.2, and 5.3 of the aforementioned Supplement document with respect to National Fuels incorporation of Impact Avoidance and Minimization Measures for the Project.


Appendix A



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Page Subject Comment Response 6 Wetland

Resources The EA indicates that National Fuel plans to monitor affected wetlands for three years to assess re-vegetation success or failure . . . Generally the Department requires a minimum of 5 years of monitoring . . . In addition, 10 years monitoring of tree plantings designed to compensate for conversion of forested wetlands and regulated 100-foot adjacent areas will be necessary.

National Fuel has committed to monitor affected wetlands for 5 years along the Project in New York (as opposed to the FERC-required 3 years), and documented this commitment in its Supplement to National Fuels Joint Application for 401 Water Quality Certification and Article 15 and Article 24 Permits to NYSDEC (submitted to NYSDEC on September 9, 2016 and filed with FERC on September 13, 2016).

6 Wetland Resources

National Fuel needs to prepare a conceptual mitigation plan for agency and public review with respect to compensatory mitigation of permanent and temporary wetland impacts.

National Fuel prepared and submitted to NYSDEC and the U.S. Army Corps of Engineers (COE)-Buffalo District a conceptual mitigation plan with respect to compensatory mitigation of permanent and temporary wetland impacts for the Project in New York (in its Joint Application for 401 Water Quality Certification and Article 15 and Article 24 Permits to NYSDEC February 29, 2016 (filed with FERC on March 4, 2016)). National Fuel also updated this plan in its Supplement to National Fuels Joint Application for 401 Water Quality Certification and Article 15 and Article 24 Permits (submitted to NYSDEC on September 9, 2016 and filed with FERC on September 13, 2016). National Fuel anticipates that the NYSDEC will issue a public notice of this Applications completeness in the coming weeks, at which time agencies and the public may review the complete application, including the compensatory mitigation plan for permanent and temporary wetland impacts. Similarly, National Fuel submitted a conceptual mitigation plan to PADEP/COE-Pittsburgh District for the Project in Pennsylvania (as part of the associated Joint Application for Permit in PA). PADEP and COE formally notified and provided opportunity to the public to review the complete applications (including the compensatory mitigation plan), and accepted comments for a 30-day period (PADEP: July 30 August 29, 2016; COE: August 12 September 10, 2016).


Appendix A



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Page Subject Comments Response 6 Wetland

Resources Mitigation will be required by the department for any permanent wetland conversion and such mitigation needs to be reflected in the EA.

See response to Page 6/Wetland Resources above.

7 Sensitive Vegetation Communities

National Fuels field surveys focused on presence/absence of the known [vegetation] communities in the general vicinity of the existing records, and did not appear to survey for such communities elsewhere.

In accordance with NYSDEC staff recommendations, National Fuel surveyed for threatened/endangered plants in New York in potential occurrence areas (i.e., known species occurrence areas identified by the NYNHP), as well as all locations in the surrounding areas where potentially suitable habitat may be present.

7 Vegetation Impacts and Mitigation

The [EA] recommends that . . . National Fuel develop a final invasive species plan in coordination with applicable agencies. Such a recommendation is . . . essential and such a plan must include pre-construction surveys to document baseline invasive species conditions . . . It is recommended that National Fuel conduct such surveys during the current or next growing season.

NYSDECs comments claim that the EAs consideration of invasive plant species are inadequate, citing to a single paragraph on page 55 of the EA. In fact, the potential impacts of invasive plant species are referenced throughout the EA. See EA at 52 (re-vegetation monitoring must ensure that invasive species are absent); id. at 57 (discussion of invasive species in the context of potential forest fragmentation); id. at 146 (vegetation clearing); id. at 149 (wildlife habitat); id. at 159 (climate change). Thus, the EA complies with NEPA requirements imposed pursuant to 40 C.F.R. 1508.9 and 18 C.F.R. 380.2(d) by discussing the potential impacts of invasive plant species in several different contexts. Additionally, National Fuel submitted an invasive species plan for NYSDEC staff review and comment on August 26, 2016, and is awaiting NYSDEC comments on/acceptance of the plan. This plan was included as Appendix L in National Fuels Supplement to its Joint Application for Section 401 Water Quality Certification and Article 15 and Article 24 Permits to the NYSDEC (submitted to NYSDEC on September 9, 2016 and filed with FERC on September 13, 2016).


Appendix A



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Page Subject Comments Response 8 Threatened and

Endangered and Special Status Species

The EA should address potential [noise] impacts to [the Northern Harrier and Short eared Owl] . . . and the potential for compressor station noise to significantly disrupt foraging

Based on the results of species-specific winter and spring surveys for northern harrier (NY state-listed Threatened) and short eared owl (NY state-listed Endangered) at and near Pendleton Compressor Station, National Fuels noise assessment and projections of operational noise, and its proposed construction materials and design specifications that serve as noise management measures at the Pendleton Compressor Station, National Fuel believes that the potential for compressor station noise to significantly disrupt northern harrier and short-eared owl foraging during operations is low to negligible/none. Additionally, with respect to construction noise, National Fuel has committed to not utilizing blasting in connection with the Pendleton Compressor Station, and will use screw piles, rather than driven piles for the Station foundations, which will further reduce construction noise.

8 Threatened and Endangered and Special Status Species

Agency correspondence [on T&E plant species] was limited to known occurrences . . . since others may. . . exist in the project area but...have yet to be recorded by NYNHP. . . National Fuels field surveys focused on determining presence/absence of the known species in the general vicinity of the existing records, and did not appear to survey for T&E plant species elsewhere in the project area.

In accordance with NYSDEC staff recommendations, National Fuel surveyed for threatened/endangered plants in New York in potential occurrence areas (i.e., known species occurrence areas identified by the NYNHP), as well as all locations in the surrounding areas where potentially suitable habitat may be present.

9 Air Quality The Department believes that the additional controls being proposed for Pendleton can be utilized at the Porterville compressor station to further reduce emissions from that facility

National Fuel will install state-of-the-art combustion controls that meet or exceed applicable state and federal requirements at the Porterville Compressor Station. These controls represent industry best practices to minimize leaks and gas venting. Specifically, in order to further reduce emissions, National Fuel will voluntarily employ vent gas recycling with respect to the two new transmission compressor units to be installed at its existing Porterville Compressor Station. In addition, National Fuel will install oxidation catalysts on each of the new transmission compressors, state-of-the-art Low Emission Combustion (LEC) controls, and air-driven pneumatic devices.


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Page Subject Comments Response 11 Greenhouse

Gas Emissions Comparing the proposed projects GHG emissions to overall state emissions is inadequate.

NYSDEC asserts that the EA should have made some other type of evaluation aside from comparing the proposed projects GHG emissions to existing New York and Pennsylvania GHG emissions. The D.C. Circuit, however, has found that comparing the proposed projects GHG emissions to existing state GHG emissions is adequate under the more stringent requirements of an EIS. See WildEarth Guardians v. Jewell, 738 F.3d 298, 309 (D.C. Cir. 2013). No commenters identify what additional analyses or comparison would better inform FERC regarding the environmental impacts of the proposed project or when comparing the preferred alternative to other alternatives. Given that the other alternatives involve different routes that are slightly longer, any type of comparison, be it against global, national, or state inventories or the GHG emissions of some other pipeline or type of industrial facility, would not be able to provide meaningful information regarding the preferred alternative versus other alternatives, aside from the No Action Alternative. Further, there is no standard methodology for determining the proposed Projects incremental contribution to the physical effects on the environment from climate change. Nevertheless, the estimated emissions from the construction and operation of the project, both alone and as a matter of cumulative impact, are so small that FERC should conclude that there is no expected significant impact on local or regional air quality. Therefore, FERC should acknowledge that performing additional analyses, to the extent they can be performed at all, after the conclusion of the EA, would not be proportionate to the value of the information included. Final GHG Guidance at 34.

11 Greenhouse Gas Emissions

EA should have analyzed the proposed projects potential impact on New York GHG emission reduction goals.

NYSDECs comments argue that the EA should have considered the proposed projects potential impact on New Yorks ability to meet its goal of reducing state GHG emissions by 40% in 2030 when compared to its 1990 baseline. Consideration of this substantive goal is outside NEPAs scope. Congress enacted this procedural statute directing federal agencies to issue a report on whether their actions significantly affect[ ] the quality of the human environment. 42 U.S.C. 4332(c); Maryland-National Capital Park v. United States Postal Serv., 487 F.2d 1029, 1037-38 (D.C. Cir. 1973) (Congress intended NEPA to examine potential impacts on the environment and that term cannot be stretched so far as to include certain economic, social, and policy concerns raised by a municipality). The EA quantifies the proposed projects construction and operational emissions. To go beyond these analyses and engage in some detailed analysis of whether those emissions would prevent New York from reaching its stated goal would appropriate the Commissions NEPA process by requiring in-depth examinations of current and future GHG emission sources throughout the State as well as current and future mobile source GHG emissions. A vast array of state and local policies, including state and municipal efforts to lure new businesses to the state (which would include potential new populations of workers with attendant vehicle emissions) and legal requirements and incentives to reduce GHG emissions, would require intensive study to provide even a general discussion of the proposed projects potential impact on New Yorks 2030 goal for GHG emission reductions. The arduous, fine-grained analysis required for such purposes would be beyond the rule of reason which governs federal agencies actions under NEPA.


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Page Subject Comments Response 1, 12 Level of NEPA

Review Various Comments See Appendix B, Response No. 16.

B. U.S. Fish and Wildlife Service Letter, dated August 19, 2016 2 Surface Water

Resources Because trenchless methods involve no direct impacts to the stream, we recommend this method be used for all waterbodies classified as fisheries of special concern.

As FERCs EA for Project correctly notes:

Though HDD can be a viable option for crossing aquatic resources, the moderate to steep terrain encountered along much of the project route makes it impractical to use HDD as a crossing method for many of the waterbodies. Additionally, HDD does pose a potential risk to aquatic resources due to the potential for inadvertent returns. The majority of crossings are minor [

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Page Subject Summary of Comments Response 2 Surface Water

Resources We recommend an environmental monitor be on site when in-stream work is being completed.

National Fuel will employ Environmental Inspectors (EIs) to monitor environmental compliance during all phases of construction. Additionally, environmental training will be given to National Fuels personnel and to contractor personnel whose activities may impact the environment during pipeline construction. All construction personnel from the chief inspector, EIs, craft inspectors, and contractor job superintendent to loggers, welders, equipment operators, and laborers will be given the appropriate level of environmental training. In addition to the EIs, all other construction personnel are expected to play an important role in maintaining strict compliance with all permit conditions to protect the environment during construction. National Fuel has also committed to participating in a FERC third-party compliance monitoring program during the construction phase of the Project. Under this program, National Fuel will fund a contractor, selected and managed by the FERC, to provide environmental compliance monitoring services. The FERC third-party Compliance Manager will provide daily reports to the FERC on compliance issues and make recommendations to the FERC Environmental Project Manager on how to address compliance issues and construction changes, should they arise. FERC staff will also conduct inspections throughout construction and restoration.

2 Surface Water Resources

Five streams will be crossed by horizontal directional drilling (HDD). While this method bores under the waterbody with no expected water quality impacts, some geological conditions can cause failure and a release of drilling fluids into the water. A contingency plan has been developed by the project sponsor if spills were to occur. However, an alternate crossing method for each waterbody in such a case has not been provided in the EA. Therefore, we request this information be provided to our office.

National Fuel plans to install the proposed pipeline using trenchless techniques in five (5) separate areas in New York, beneath a total of six (6) streams and six (6) wetlands; and in one (1) area in Pennsylvania (beneath the Allegheny River and an associated wetland complex).


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Page Subject Summary of Comments Response 3 Surface Water

Resources Hydrostatic testing will require withdrawal of large volumes of waterfrom six waterbodies, including Allegheny River and Oil Creekthe use of HDD will require additional water to be potentially withdrawn from the Allegheny River and Ischua Creek . . .The Service requests additional information on the water withdrawals to evaluate the impacts of this action on listed species.

When withdrawing water for hydrostatic testing or HDD activities from surface waters, including the Allegheny River and Ischua Creek, National Fuel will attach the water intake to a float so it does not disturb the stream bottom where mussels may be located, and the intake will be screened to avoid the entrainment of fish and other aquatic organisms. During withdrawal activities, National Fuel will control the rate of withdrawal to ensure downstream flows are maintained to support the aquatic base flow of the streams.

3 Surface Water Resources

Wetlands are numerous . . . construction would result in temporary impacts to a total of 89 acres . . . Permanent impacts include the loss of 5.3 acres of forested [wetlands] and 1.5 acres of shrub [wetlands] habitat . . .We are particularly concerned about impacts from workspaces, access roads, and staging areas. In

Routing for total avoidance of all wetlands in a linear project of this magnitude, in the regions of the U.S. traversed, is not practicable. This statement is even more accurate when a Project attempts to maximize the route siting/location parallel and adjacent to existing linear ROWs, where wetlands have already been disturbed (and restored and maintained as part of linear utility corridors). The Project will not result in the permanent deposition of any permanent fill, or the loss as a result of filling in any wetlands. Temporary impacts to wetlands will be avoided at staging areas (i.e., pipe storage and contractor yards) selected for the Project. Temporary impacts to wetlands as a result of access roads will be minimized by using existing access roads to the maximum extent available. Wetland impacts from workspaces will be minimized by limiting the width of workspace areas in wetlands to the nominal width needed to ensure safe and efficient installation of the pipeline while providing adequate space for implementation of wetland conservation measures such as topsoil


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Page Subject Summary of Comments Response these areas, the project

sponsor should adjust plans to avoid impacts entirely. An adequate alternatives analysis should be provided prior to project approval by the FERC.

segregation. Additional (expanded) temporary workspace areas will be located outside of wetlands unless absolutely necessary (and where necessary, National Fuel has provided site-specific justification to FERC). National Fuel will adhere to the wetland construction and impact minimization measures in FERCs Wetland and Waterbody Construction and Mitigation Procedures, which have been proven to promote the successful restoration of wetlands in nationwide surveys (FERC, 2004. Research of Wetland Construction and Mitigation Activities for Certificated Section 7(c) Pipeline Projects). The alternatives analyses in FERCs EA address a wide range of siting features under FERCs purview. National Fuels applications for wetland permits (on the state and federal/COE level) provide a more robust discussion on alternatives and impact avoidance and minimization that focuses more specifically on wetlands and water quality, as appropriate.

3 Vegetation A distance of 300 feet from a forest edge was used to determine impact to interior forest species . . . There are no details of the analysis to determine the level of impact, other than a 300 foot distance, and the Service has requested more information from the project sponsor. We specifically requested mapping which shows all forested areas along the alignment, all interior forest, and a 300 foot buffer in forested locations.

National Fuel received comments directly from the USFWS-New York Office on its Migratory Bird Impact Assessment and Habitat Conservation Plan (July 28, 2016). Based on these comments, interior habitat is defined as those areas approximately 300 feet from an existing edge and where interior species are provided sufficient quality habitat to survive. National Fuel is in the process of updating the analysis submitted to USFWS in July 2015 to address the agencys initial comments received on July 28, 2016, including the requested mapping, and anticipates submitting to both FERC and USFWS shortly.

3 Wildlife Resources

For this project, no mitigation was provided for the loss of migratory bird habitat . . . we recommend the FERC require the project sponsor to provide adequate compensatory mitigation for this loss.

Based a review of Migratory Bird Treaty Act regulations, USFWS regulatory guidance, and agency comment/response provided to National Fuel on its Migratory Bird Impact Assessment and Habitat Conservation Plan before FERC issued its EA, and due to the limited the nature of anticipated Project impacts, mitigation was not proposed for impacts to migratory bird habitat. The USFWS-Pennsylvania Office has already provided an acceptance letter to National Fuel without a request or requirement for compensatory mitigation (August 17, 2015), stating, Thank you for taking migratory bird protection into consideration during project planning by proposing conservation measures


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Page Subject Summary of Comments Response to reduce adverse impacts. The Service supports the proposed measures National Fuel has also

suggested identical mitigation measures to the USFWS-NY Office and is in the process of scheduling a meeting with the USFWS-NY Office to discuss any open issues on this topic.

C. Town of Pendleton, New York2 1 Residential

Development Two . . . housing developments proposed before National Fuel requested pre-application review . . . have been put on hold in light of the compressor station proposal. The project has thus already had an adverse impact on the rural residential character of the community.

The proposed Compressor Station site consists of only a small 20 acre portion of a much larger approximately 250 acre light industrial zone established by the Town of Pendleton. Within this light industrial zone, and in the immediate vicinity of the Pendleton Compressor Station, is a large scale bulk topsoil storage, shredding and distribution operation, as well as an active gun club. These facilities are located approximately 2,100 feet and 3,300 feet, respectively, from the proposed Compressor Station site, within this light industrial zone. Additionally, the Town of Pendleton has not provided any support for its allegation that approval of the Project, including the construction of the proposed Compressor Station, would somehow scuttle residential development proposed before National Fuels FERC application for the Project. Such an allegation is nothing more than speculation. However, to the extent that the Town continues to allow the spread of misinformation concerning the Project, the Town furthers the possibility that its unfounded allegations become a self fulfilling prophesy.

2 FERC Process FERC staff[ ] require[d] that the applicant file periodic response to . . . [stakeholder] filings on a monthly basis.

In order to timely respond to comments received from community stakeholders concerning the Project, National Fuel voluntarily adopted a practice of providing responses to FERC with respect to new and previously unaddressed substantive issues/concerns on a monthly basis. These submittals were not required by FERC, as indicated by the Town of Pendleton. More specifically, there is no requirement in the FERC regulations, outside of those that apply to the FERC scoping process, by which National Fuel was obligated, in any manner, to submit periodic responses to stakeholder comments.

3 Noise The only reference to the [55 dBA] criterion we have found applies to blanket certificates, not to activity that would be authorized under Section 7 of Natural Gas Act.

The Town of Pendletons comment that the 55 dBA criterion only applies to blanket certificates is inaccurate. Pursuant to FERCs regulations (18 C.F.R. 380.12), which applies to any application that proposes the construction, operation, or abandonment of any facility, the applicant must submit an environmental report which shall consist of the thirteen resource reports and related material described in this section. This includes a requirement in 18 C.F.R. 380.12(k)(v)(A) [Resource Report 9] that a project applicant demonstrate that the . . . [t]he noise attributable to any new compressor station . . . [will] not exceed a day- night sound level (Ldn) of 55 dBA at any pre-existing noise-sensitive area (such as schools, hospitals, residences).

2 Similar to the Town of Pendletons scoping comment responses, the Town of Pendletons comments on the Environmental Assessment for the Northern Access 2016 Project are belated, as they were filed on August 27, 2016 at 12:06 p.m., more than 17 hours after the comment period closed (August 26, 2016 at 5pm EST). As such, they should not be considered by the Commission. Nonetheless, National Fuel provides responses to the Town of Pendletons comments in an abundance of caution, in order to correct the numerous inaccuracies and misstatements contained therein.


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Page Subject Comment Response 3 Noise As noted in our consultants

report . . . [t]he average sound pressure level (Leq) was measured as 35 dBA . . . FERCs criterion is equivalent to a continuous Leq noise level of 48.6 dBA. An increase in 10 dB above background is perceived a doubling of the pre-existing sound level

The Town of Pendletons insinuation that there will be a 10 db increase (i.e. a doubling of the pre-existing sound level) above existing ambient sound levels at the nearest NSAs to the Pendleton Compressor Station is a red herring. National Fuels Pendleton Compressor Station Ambient Sound Survey and Noise Impact Analysis for the Station (filed with FERC on November 13, 2015) demonstrates that the estimated Ldn of the Pendleton Compressor Station at the nearest existing NSA (approximately 1,400 feet from the proposed Station) is 38.0 dBA, and representative of a 1.4 dB (or minimal) increase in ambient noise. Analysis concerning all other NSAs demonstrates even smaller increases in ambient noise, ranging from 0.0 dBA to 0.3 dBA (i.e. no to minimal increase).

4 Noise National Fuels background sound study departs from applicable methods for evaluating long-term background sound levels published by the Acoustical Society of America (ASA) and the American National Standards Institute (ANSI). Those standards require environmental insect noise, barking dogs, passing automobile traffic . . . and other sporadic . . . sounds be removed from the data set utilized to calculate background. National Fuel submitted a background study that includes all these . . .

The National Fuel Ambient Sound Survey and Noise Impact Analysis report for the Pendleton Compressor Station includes the background sound (i.e. the Leq level), which includes all sounds from any source that occurred during the measurement period. This sound survey also includes a measure of the residual sound (i.e. the L90 level), which eliminates or renders insignificant all uniquely identifiable discrete sound sources. Any additional computational adjustments to residual sound are not supported by the applicable ASA/ANSI standards.


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Page Subject Comment Response 4, FN 10

Noise Pendleton considered adopting a new noise ordinance in 2015 but has since abandoned that effort.

The Town of Pendletons statement that it considered adopting a new noise ordinance in 2015, downplays its earlier December 21, 2015, representations to FERC, through its special counsel, Gary A. Abraham, that the Town Board . . . tentatively approved [the] draft local law and anticipates approving the [noise ordinance]. See Accession No. 20151222-5026 for Docket Nos. CP15-115-000 and CP15-115-001). Indeed, as National Fuel accurately noted on January 12, 2016 (see Accession No. 20160112-5216 for Docket Nos. CP15-115-000 and CP15-1115-001), the Towns draft ordinance faces significant local opposition and . . . its approval is far from a foregone conclusion. Due to the significant local opposition concerning this proposed ordinance, the Town abandoned its efforts and the ordinance was shelved.

5 Noise National Fuels assertion that it based its analysis of the ambient sound levels near the project site on L90 sound levels is inaccurate

The National Fuel Ambient Sound Survey and Noise Impact Analysis for the Pendleton Compressor Station utilized the measured L90 sound levels for the noise impact analysis.

6-7 Noise . . . the proximity of the compressor station site to NSAs is . . . much closer than disclosed in National Fuels sound study. The study states, [t]he closest potential future house is approximately 1,300 ft. NW of the center of the proposed compressor units, identified as the Beach Ridge Meadows subdivision. However, a proposed housing development on land directly across from the site on Killian Road, to the south . . .

Pursuant to FERC regulations, a project applicant must demonstrate that . . . [t]he noise attributable to any new compressor station . . . [will] not exceed a day-night sound level (Ldn) of 55 dBA at any pre-existing noise-sensitive area (such as schools, hospitals, residences).3 As detailed in National Fuels Pendleton Compressor Station Ambient Sound Survey and Noise Impact Analysis (Pendleton Noise Study) (see Accession No. 20151113-5155 for Docket Nos. CP15-115-000 and CP15-115-001), the estimated Ldn of the Pendleton Compressor Station at the nearest existing NSA (approximately 1,400 from the proposed Station) is 38.0 dBA, well below FERCs 55 dBA requirement. A map depicting the locations of the nearest NSAs to the Pendleton Compressor Station are included on page A-1 of the Pendleton Noise Study.

3 See CFR 380.12(k)(v)(A) (emphasis added)


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Page Subject Comment Response mak[es] the nearest residential

property 538 feet from the fenceline

Although the FERC regulations only required National Fuel to provide analysis of noise impacts at existing NSAs, National Fuel also included analysis in the Pendleton Noise Study with respect to a potential new housing development to be located to the northwest of the proposed Pendleton Compressor Station. The estimated Ldn of the Pendleton Compressor Station at the nearest lot of this potential housing development (approximately 1,300 feet) is 37.3 dBA, again well below FERCs 55 dBA requirement. Based on review of the various comments concerning the EA, the suggestion of a NSA location within 528 feet of the Pendleton Compressor Station appears to be based on a proposed housing development directly across from Killian Road, to the south. However, a review of the Town of Pendleton Planning Boards meeting minutes from the past 24 months reveals that no such development is even in the preliminary stages of review (based on the Town of Pendleton Planning Board Meeting Minutes available on the Town of Pendleton website, as of September 20, 2016).

7 Noise National Fuel[s] sound study does not address Heritage Landings subdivision.

Based on a review of the Town of Pendleton Planning Boards meeting minutes, the mentioned Heritage Landing subdivision is located near Bear Ridge Road and Fiegle Road, which is approximately four (4) miles from the Pendleton Compressor Station site. As such, there was no reason for National Fuel to include any information concerning this subdivision in the Pendleton Noise Study.

8 Wetlands the EA concludes no wetland areas would be affected by construction and operation of the [Pendleton] compressor station . . . There is no indication that the EA considered the GHD [Town of Pendletons independent consultant] evaluation.

Decisions as to whether federal jurisdictional wetlands exist on a particular parcel are reserved to the U.S. Army Corps of Engineers (COE). As noted in National Fuels comments to the EA for the Project (see Accession No. 20160824-5229 for Docket Nos. CP15-115-000 and CP15-115-001), on July 19, 2016, the COE, Buffalo District, issued a preliminary jurisdictional determination (PJD), which confirmed National Fuels wetland delineation of the Pendleton Compressor Station site, and thus that no wetlands will be impacted by National Fuels construction of the Pendleton Compressor Station. As part of its decision-making process concerning the PJD, the COE considered the very GHD evaluation noted by the Town of Pendleton. In fact, a disagreement between the Town of Pendleton (based on the GHD evaluation) and National Fuel (based on the report of its own independent consultant) concerning the alleged presence of additional COE jurisdictional wetlands on the Killian Road site was the nexus for National Fuels request to the COE for a PJD in the first instance.


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Page Subject Comment Response 9 Wetlands [S]iting a compressor

station on [the Killian Road] site would result in permanent removal of wetlands.

No removal of wetlands will occur at the Pendleton Compressor Station site in connection with the Project. As noted above, on July 19, 2016, the Army Corps of Engineers, Buffalo District (COE), issued a preliminary jurisdictional determination (PJD), which confirmed National Fuels wetland delineation of the Pendleton Compressor Station site, and thus that no wetlands will be impacted by National Fuels construction of the Pendleton Compressor Station.

Additionally, on August 25, 2016, the New York State Department of Environmental Conversation, via its comments on the FERC EA, stated that there will be no state wetland impacts or 100-foot adjacent area impacts at the proposed compressor station site. See Accession No. 20160826-5189 for Docket Nos. CP15-115-000 and CP15-115-001. Thus, no state or federal wetlands will be impacted by the construction of the Pendleton Compressor Station on the Killian Road site.

10 Alleged Impacts on Local Land Use Plans

Despite the Towns request for information demonstrating that the transported gas would provide essential services, neither National Fuel nor the EA provides any such information.

As the Town well knows, National Fuel provided the detailed analysis requested.

More specifically, National Fuel provided the Town of Pendleton, on multiple occasions, with information clearly demonstrating that the Project, and specifically the Pendleton Compressor Station, would provide essential services, and thus is a permitted use in the Towns Light Industrial District. For example, on January 12, 2016, National Fuel submitted lengthy responses to the FERC docket in order to address the Town of Pendletons comments on this very issue. See Accession No. 20160112-5216 for Docket Nos. CP15-115-000 and CP15-115-001. As the Town is an intervenor on the Projects FERC docket, it received (and hopefully reviewed) this response. Additionally, on November 16, 2015, in response to a request from the Town of Pendleton Attorney and the Town of Pendleton Building Inspector, National Fuel provided detailed analysis explaining precisely how the Pendleton Compressor Station constitutes a permitted use under the Code of the Town of Pendleton.

In both of the aforementioned submittals, National Fuel clearly describes in detail how the Proposed Compressor . . . squarely fits within the definition of Essential Services and, therefore, is a permitted use in the Light Industrial District. See Accession No. 20160112-5216 for Docket Nos. CP15-115-000 and CP15-115-001. More specifically, National Fuel stated the following:


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Page Subject Comment Response The proposed Killian Road site for the Proposed Compressor Station is zoned light industrial. Permitted uses by right in the light industrial district include Essential Services.4 The Town of Pendleton Zoning Code (Code) defines Essential Services as:

The erection, construction, alteration or maintenance by public utilities or municipal or other governmental agencies of gas, electrical, steam, water, sewage and communication systems and facilities. Railroad trackage and facilities and bus shelters shall also be considered as providing an essential service.5

Pursuant to the plain language of the definition, the Proposed Compressor Station and its related facilities (the Facility) constitutes Essential Services if it involves the construction of gas systems and facilities by a public utility. There is no question that the Facility squarely fits within this definition.

First, the Facility involves the construction of gas systems and facilities.

Second, Empire fits within the definition of a public utility for purposes of zoning in New York. While the Code does not provide a definition for public utility, the New York Court of Appeals (the highest court in the state) has defined the term for purposes of zoning in New York.6 Specifically, a public utility is a private business . . . which provides services so essential to the public interest as to enjoy certain privileges such as eminent domain and [are] subject to such governmental regulation as fixing of rates, and standards of service.7Characteristics include: (1) the essential nature of the services offered which must be taken into account when regulations seek to limit expansion of facilities which provide the services; (2) operation under a franchise, subject to some measure of public regulation; and (3) logistic problems, such as the fact that the product of the utility must be piped, wired, or otherwise served to each user, the supply must be maintained at a constant level to meet minute-by-minute need, and the user has no alternative source and the supplier commonly has no alternative means of delivery.8

4 Code 247-14(C)(22). 5 Code 247-4. 6 See, Consol. Edison Co. of New York v. Hoffman, 43 N.Y.2d 598, 610-11 (1978) (Hoffman); Cellular Tel. Co. v. Rosenberg, 82 N.Y.2d 364, 372 (1993). 7 Rosenberg, 82 N.Y.2d at 371. 8 Rosenberg, 82 N.Y.2d at 371.


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Page Subject Comment Response Applying this test to the facts associated with the proposed Facility, the services being offered are essential in nature and, in fact, the supply of natural gas is the type of essential service for which federal legislation has been enacted, i.e., the NGA, to place limits on local regulations that prohibit or unreasonably delay the construction or operation of facilities approved by [FERC].9

Moreover, National Fueloperates its pipeline facilities, including the proposed Facility, subject to the exclusive regulation of FERC. Finally, the interstate delivery and supply of natural gas tracks closely with the logistical problems articulated by Rosenberg and National Fuel has the power of eminent domain, if necessary, for the construction of its facilities. Thus, it is clear that Empire fits within the definition of a public utility for the purposes of zoning in New York and the proposed Facility therefore constitutes Essential Services. In addition, there is no language in the Town's definition of Essential Services that requires the provision of services directly to Town residents in order to qualify as a public utility for zoning purposes. For example, the inclusion of railroad trackage and facilities in the definition, which typically only pass through the Town and do not provide services to Town residents, contradicts an interpretation which includes some notion of local service. Additionally, if the intent of this definition was to permit such services for the Towns residents, then Essential Services would be listed as a permitted use in the Towns residential districts where Town residents live, and it is not so listed. Nonetheless, the Town has questioned whether National Fuel would be required to show that it was serving residents of the Town in order to qualify as a public utility. However, as explained by the Court of Appeals in Hoffman, in resolving the question of hardship, the effect on the utilitys customers is a significant factor to be considered by local zoning boards.10 Thus, it is service to the utilitys customers that is the issue - not service to the local residents. Indeed, in Hoffman, Con Ed proposed construction of a 565 foot cooling tower at the Indian Point Nuclear Power Plant. The cooling tower was of limited value to the residents of the Village of Buchanan but was of critical importance to Con Eds approximately three million customers. Id. Thus, the Court of Appeals affirmed the annulment of the ZBAs denial of a

9 See, e.g., Dominion Transmission, Inc. v. Town of Myersville Town Council, 982 F. Supp. 2d 570, 573-74, 578-79 (D. Md. 2013). 10 Hoffman, 43 NY2d at 608.


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Page Subject Comment Response use variance, and directed that the ZBA issue the variance under New Yorks public utility

doctrine. Finally, notwithstanding the above, and without conceding the relevance of providing such local services, the Facility is necessary to move natural gas from the lower pressure Supply pipeline system into the higher pressure Empire pipeline system. Without the Facility, the natural gas supply that the Project will provide will be unable to reach markets connected to the Empire pipeline system, which include local natural gas utility companies. In particular, as of November, 2015, the natural gas supply for the Towns of Pendleton and Lockport, provided by New York State Electric and Gas (NYSEG), are served largely by Empire. In addition, Empire provides a portion of the natural gas supply for other major local natural gas utility companies serving Upstate and Western New York, including Rochester Gas & Electric. See Accession No. 20160112-5216 for Docket Nos. CP15-115-000 and CP15-115-001.

Based on the information submitted to the FERC docket for the Project, including the above, FERC staff properly concluded that the Killian Road site is zoned Light Industrial and permits essential services, such as the proposed natural gas infrastructure. See Accession No. 20160727-4003 for Docket Nos. CP15-115-000 and CP15-115-001, at page 167.

10 Alleged Impacts on Local Land use Plans

Because compatible residential and recreational land uses surround the site, and more residential development is planned near the site, it is submitted that a FERC approval would have a significant adverse impact on the Towns land use plan.

As noted in Empires July 7, 2016 response to comments filed by the Supervisor of the Town of Pendleton (see Accession No. 20160707-5165 for Docket Nos. CP15-115-000 and CP15-115-001), the Pendleton Compressor Station site consists of only a small 20 acre portion of a much larger approximately 250 acre light industrial zone established by the Town. This light industrial zone permits a variety of industrial and manufacturing uses, including, for example, the manufacture and assembly of electronics, pharmaceuticals, and laboratories and research facilities, as well as essential services, such as the proposed Pendleton Compressor Station. As is well known, a large scale bulk topsoil storage, shredding and distribution operation, as well as an active gun club, are located approximately 2,100 feet and 3,300 feet, respectively, from the Pendleton Compressor Station site, within this light industrial zone. Furthermore, the Towns own Comprehensive Plan specifically includes the stated goal of maintain[ing] industrial zoning and expand[ing] . . . light industrial zoning and clearly acknowledges that the establishment of more light industrial activities can help to create a more stable/balanced tax base.11 Even more telling, the Towns Comprehensive Plan specifically recommends land use changes

11 See Town of Pendleton Comprehensive Plan 2025, 4.4 (emphasis added), available at http://pendletonny.us/pdfs/Pendleton%20-%20Comprehensive_Plan.PDF


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Page Subject Comment Response to guide the future growth of the Town of Pendleton which include [e]xtending the Light Industrial

Zoning District on Killian Road.12 11 Local Air

Quality NYSDEC requested that an air quality analysis for formaldehyde be completed for the proposed modifications to the Porterville Compressor Station and Pendleton Compressor Station . . .These analyses were provided along with the air permit applications for these two facilities submitted in February 2016 . . . However, we were unable to locate the air permit applications in the record . . . Accordingly, we [the Town of Pendleton] . . . have made a freedom-of-information request for the applications and will file supplemental comments as soon as these materials can be obtained and reviewed.

On August 22, 2016, the Town of Pendleton, through its special counsel, Gary A. Abraham, filed a Motion for an Extension of Time for Commenting on the Environmental Assessment for the Project, citing the unavailability of the air permit application for the Pendleton Compressor Station. See Accession No. 20160822-5136 for Docket Nos. CP15-115-000 and CP15-115-001. On August 24, 2014 (three days before the Town of Pendleton submitted the instant comments), National Fuel and Empire responded to the Towns Motion (see Accession No. 20160824-5177 for Docket Nos. CP15-115-000 and CP15-115-001), and clarified that the air facility registration application for the Pendleton Compression Station was filed with FERC over five months prior, on March 2, 2016, (via the FERC eLibrary website), and was readily available. See Accession No. 20160302-5112 for Docket Nos. CP15-115-000 and CP15-115-001. Furthermore, on March 2, 2016, in response to questions raised by the Town of Pendleton Planning Board, Empire advised the Town, in writing, that its air facility registration application, and associated air modeling analysis, were available on the FERC docket for the Project, and provided explicit instructions to the Town as to precisely how to access this information. The Town of Pendleton Planning Board, in conjunction with the Town of Pendleton Engineer, thereafter reviewed these materials, and both were satisfied as to the responsiveness of these materials to various air quality concerns. With respect to the Porterville Compressor Station, National Fuels NYSDEC air facility registration application was also filed with FERC on March 2, 2016, again via the FERC eLibrary website. See Accession No. 20160302-5112 for Docket Nos. CP15-115-000 and CP15-115-001. In light of the fact that both of the aforementioned air facility registration statement applications have long been on file with FERC, and the Town of Pendleton, as an intervenor, would have notice of each of these filings, National Fuel and Empire submit that any further belated comments from the Town of Pendleton concerning the EA should not be considered.

12 Alternatives the pipeline connection to the compressor station requires use of property owned by Pendleton, and National Fuel has not reached an agreement with Pendleton to acquire the right to use the property.

National Fuels goal is to negotiate right-of-way (ROW) agreements with all affected landowners to the satisfaction of both the landowner and the company. To that end, National Fuel will shortly commence ROW negotiations all landowners along the EMP-03 pipeline route, including the Town of Pendleton. Once the Project receives a FER

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