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Request That You Require Your Department of Environmental Conservation to DENY Section 401 Water Quality Certification and All Other State Approvals for the Proposed Northern Access Pipeline

February 24, 2017

Honorable Andrew M. Cuomo
New York State Governor
The Capitol
Albany, NY 12224

Greetings:

I respectfully write today to request that you require your Department of Environmental Conservation to DENY a Section 401 Water Quality Certification and all other New York State regulatory approvals required for the proposed Northern Access Pipeline to be built.

As I will document herein with DEC's own data, the agency has a long-standing inability to fulfill the applicable provisions of the U. S. Clean Water Act as well as other requirements of New York State law to safeguard public health and the environment from transmission pipeline pollution hazards.

In addition, with all due respect, I believe it would be irresponsible of you to permit the proposed project to proceed given National Fuel's well-documented inability to prevent or clean up to state standards a wide variety of pipeline, compressor station and other natural gas infrastructure contamination discharges. Many of these uncontrolled releases caused massive irreparable pollution problems.

Proposed Northern Access Pipeline Background

It is my understanding that National Fuel Gas Supply Corporation and Empire Pipeline, Inc. have applied for various state approvals for the National Fuel Gas Northern Access 2016 Project. The applied approvals are for Article 24 - Freshwater Wetlands, Article 15 - Title 5 Stream Disturbance, Section 401 - Clean Water Act - Water Quality Certification and Article 19 - Air State Facility.

According to DEC's Environmental Notices Bulletin, the proposed Northern Access Pipeline would include:

"1) the construction of a new 24 inch diameter transmission pipeline totaling approximately 97 miles from McKean County, Pennsylvania through Allegany, Cattaraugus and Erie Counties in New York; 2) construction of approximately 2.1 miles of 16 inch/24 inch transmission pipeline in the Town [sic] Pendleton in Niagara County, New York and 3) a pipeline interconnection with Tennessee Gas Pipeline in the Town of Wales, Erie County, New York."
"A new approximately 15,000 horsepower compressor station in Town of Pendleton, Niagara County;

Addition of approximately 5,000 horsepower of compression at National Fuel Gas Supply's existing Porterville Compressor Station in the Town of Elma, Erie County, New York; and

A new natural gas dehydration facility in the Town of Wheatfield, Niagara County, New York."

Finally, "In New York State the project includes:

The crossing of 192 streams which include: 60 perennial streams; 77 intermittent streams, 48 ephemeral streams and 7 dry ditches (NOTE: 35 of the 192 are temporary bridge crossings with no pipeline crossing) [sic]

19 streams with a classification of C(t) or higher (protected streams) and 28 intermittent or ephemeral streams flow into a protected streams [sic]

The crossing of 5 streams (4 crossings) using a horizontal directional drill (HDD) method, 3 streams will be bored and all remaining streams will be crossed using the dry crossing method [sic]

The crossing of 13 NYS DEC Regulated Freshwater Wetlands totaling 2.20 miles in length with 10.84 acres of permanent impact located within the 50-ft. ROW and 6.49 acres of additional temporary workspace impact with no permanent wetland fill."

DEC Must DENY A Section 401 Water Quality Certification for the Proposed Northern Access Pipeline Project

DEC's Section 401 Certification requirements are extremely strict:

"In accordance with Section 401 of the Clean Water Act, applicants for a Federal license or permit for activities (including but not limited to the construction or operation of facilities that may result in any discharge into waters of the United States) are required to apply for and obtain a Water Quality Certification from DEC indicating that the proposed activity will not violate water quality standards (emphasis added)."

DEC must DENY a Section 401 for the proposed Northern Access Pipeline Project because National Fuel has already failed to prevent or clean up to state standards numerous major spills involving existing pipelines, compressor stations and other infrastructure projects. These spills caused groundwater as well as surface water pollution problems.

See below and: DEC-Reported National Fuel Spills

DEC also must DENY the requested Section 401 Water Quality Certification because natural gas, crude oil and petroleum product infrastructure projects earlier approved by DEC resulted in more than 100 major explosions, fires, leaks, accidents, spills and toxic discharges which often caused extensive water pollution hazards that were never cleaned up to state standards.

See: Natural Gas, Crude Oil and Petroleum Product Pipeline Fires, Explosions, Accidents, Ruptures and Spills

DEC Must DENY Wetland and Waterway Permits for the Proposed Northern Access Pipeline Project

DEC must DENY all wetland and waterway permits for the proposed project because the agency has a documented inability to provide regulatory oversight for Stormwater Pollution Prevention Plans (SPPP) required to safeguard wetlands and waterways from transmission pipeline contamination harm.

It has recently come to light that DEC failed to recognize a wide variety of serious flaws in the Dominion New Market Pipeline SPPP. This factually inaccurate SPPP was submitted in compliance with a mandated State Pollutant Discharge Elimination System General Permit for Stormwater Discharges from Construction Activity (GP-0-15-02). It has multiple documented shortcomings which render it unsuitable for regulatory compliance purposes.

The SPPP's major flaws include a failure to delineate protected wetlands, waterways and buffer zones earlier identified at the Borger Compressor Station Site, located at 219 Ellis Hollow Creek Road, as part of mandated site characterization and remediation reports provided to DEC.

As a result, the SPPP reached a factually incorrect conclusion on a critical issue. Section 2.1.4 Surface Water and Wetlands in Project Area states:

"Wetland and waterbody delineation surveys were conducted by Tetra Tech, Inc. at the existing compressor station. Several existing wetlands and waterbodies were discovered at the Borger Compressor Station. However, all of these features are located outside (emphasis added) of the proposed Limit of Disturbance (LOD)."

Based on the erroneous SPPP, Dominion submitted a variance request which would allow construction activity within the LOD delineated at multiple sites to encroach upon the 50-foot wetland or waterbody buffer required by applicable Wetland and Waterbody Construction and Mitigation Procedures. Those variances could cause irreparable water quality hazards and must not be granted by FERC.

Dominion's SPPP clearly failed to identify multiple protected wetlands, waterways and buffer zones at the Borger Compressor Site where wetlands and waterways either adjoin or are located in close proximity on three sides of the facility (East, South and West).

Wetlands and buffer zones are clearly located within the original as well as the proposed revised LOD areas

The maps presented in Dominion's SPPP and Wetland and Waterbody Protection Variance Request are spatially inaccurate in a wide variety of documented ways. The project site delineation does not comport with local tax parcel boundaries. Wetlands do not line up with spatial delineations available from local, state and federal authorities. Multiple streams are not delineated.

These concerns are documented in a detailed request that the Dominion New Market Pipeline SPPP be revoked and required to be done over to address its technical shortcomings.

These egregious errors regarding the proposed pipeline project raise fundamental concerns about DEC's inadequate oversight of all wetland and waterbody permit reviews.

See: Request That Governor Cuomo Immediately Revoke Proposed Dominion New Market Pipeline Stormwater Pollution Prevention Plan

Compensatory Mitigation Policy Not Enforced

The proposed Northern Access Pipeline Project has received "conditional approval" from FERC (Federal Energy Regulatory Commission). See: NORTHERN ACCESS 2016 PROJECT - ferc.gov

This conditional approval is contingent on implementation of the "compensatory mitigation" policy:

"Compensatory mitigation" requires that: "the restoration (re-establishment or rehabilitation), establishment (creation), enhancement, and/or in certain circumstances preservation of wetlands, streams and other aquatic resources for the purposes of offsetting unavoidable adverse impacts which remain after all appropriate and practicable avoidance and minimization has been achieved."

DEC, the U.S. Army Corps of Engineers and the Environmental Protection Agency are documented to have failed to require the prevention and clean up of various toxic releases at the Borger Compressor Station Site and multiple other locations along the existing Dominion Pipeline that reportedly impacted wetlands and waterways.

Those same regulatory entities also failed to provide proper regulatory oversight over many other pipeline, compressor station and infrastructure projects that caused pollution releases which impacted wetlands and waterways across New York.

This record of inadequate regulatory enforcement documents that the "compensatory mitigation" policy simply has not been translated into reality for multiple FERC-approved projects in New York. This information provides a clear rationale for rescinding FERC's conditional approval for the Proposed Pipeline Project.

Conclusion

DEC's own spill reports clearly document that the agency can neither assure that National Fuel will "preclude" nor clean up any waterway contamination hazards that might be caused by its proposed Northern Access Pipeline Project.

As a result, I believe you have a duty to require that the Section 401 Water Quality Certification required for the project to proceed is DENIED.

I also have documented why wetland and waterway protection permits must not be granted for the proposed project because they have similarly proven ineffective for protecting public health and the environment.
Finally, I request that you withhold approvals for the proposed Northern Access Pipeline and all other infrastructure projects that would perpetuate New York's dependence on fossil fuels that cause local contamination hazards and contribute to global climate change.

I ask that you provide a favorable reply to a coalition letter with more than 1,200 signatories which requests that you adopt a moratorium on state approvals for all proposed fossil fuel pipelines, power plants, storage facilities and fossil fuel infrastructure projects proposed in New York.

See: Coalition Letter Which Requests That Governor Cuomo Adopt a Statewide Moratorium on Fossil Fuel Project Approvals

This request echoes a similar request submitted by a total of 22 State Legislators.

See: Legislators Sign-on Letter Requests That Governor Cuomo Adopt Statewide Moratorium on Fossil Fuel Project Approvals

In conclusion, I believe that you must not approve the Northern Access Pipeline Project because it would almost certainly cause further irreparable toxic harm to western New York and the Niagara Frontier. This is a region where DEC's long-standing regulatory ineffectiveness has resulted in toxic contamination hazards on an unprecedented scale in American history.

It is inconceivable that you could permit additional massive industrial projects that would exacerbate this region's toxic legacy. If you authorize Northern Access Pipeline to proceed, it would be improper for all the reasons I have respectfully documented herein and took the time to voice in person at the 2/15/17 public hearing.

I trust that you will find my requests self-explanatory. Please do not hesitate to contact me if you have any questions that I might be able to answer about my comments.

Thank you for your consideration and your public service.

Yours truly,

Walter Hang