People’s Dossier of FERC Abuses: Violations Overlooked

FERC Fails to Hold Pipeline Companies Accountable for Violations of Environmental Protection Laws

(Download printable copy of “People’s Dossier of FERC Abuses: Violations Overlooked with attachments” here)

FERC consistently overlooks violations of law and/or degradation of the environment during pipeline construction

Research by the Delaware Riverkeeper Network shows that FERC has only ever issued one civil penalty (1) for violations related to construction activity of a pipeline project, despite the fact that the applicable water protection laws and regulations are routinely violated during pipeline construction. In addition, when violations are identified, FERC does not issue stop work orders or mandate the company remedy the environmental harm and come into compliance with the law prior to continuing construction; instead, the pipeline company is allowed to simply continue with construction on the rest of the line.

It is not that FERC is not aware of the multitude of violations that take place during pipeline construction, it is that FERC fails to act upon, and often fails to event investigate, credible complaints of violation reported by local and state regulatory employees, as well as individuals, who often accompany their reports with photographic evidence.

FERC’s inadequate response to violations not only results in continuing damage from the violations that take place, but there is no incentive for pipeline companies to ensure violations are avoided, or that the company self-identify, remedy, and remediate violations and damage as soon as a violation occurs.

• A typical example of FERC’s inexplicable reluctance to issue civil penalties for violations of environmental protection laws involves the construction of Tennessee Gas Pipeline Company’s (“Tennessee”) 300 Line Upgrade Project (FERC Docket No. CP09-444). By the end of the project, among other violations, FERC had recorded:
• 43 instances of silt laden water entering resources/depositing sediment off of the pipeline right-of-way,
• 15 instances of failures to properly install erosion controls or use best management practices to adequately protect resources,
• 9 instances of failures to properly install/maintain erosion controls resulting in impacts to resources,
• 6 instances of erosion/disturbance resulting from stormwater discharges off of the right- of-way, and
• at least 2 instances of in-stream work conducted in violation of fishery restrictions.

FERC not only failed to issue any civil penalties relating to the multitude of recorded violations, FERC did not even issue a stop-work order that would require TGP to remedy the violations and environmental harm before allowing the pipeline company to proceed with ongoing construction activities. FERC did nothing to rectify the violations or the harms caused thereby, and in effect condoned and incentivized this behavior by the company.

FERC’s failure to enforce against environmental violations is routine

Examples of significant violations reported to, and ignored by FERC include items such as the following:

On June 25, 2013, Delaware Riverkeeper Network reported a pipeline company crew with two blue water hoses … bypassing wetland protection measures …, and discharging sediment-laden water directly into the wetland outside of the ROW footprint. Delaware Riverkeeper Network representatives approached (with pipeline security following) to videotape the violations and found the high-pressure hoses discharging sediment-laden water were flowing directly into the wetland, contrary to required best management practices (BMP). A contractor was then observed franticly trying to cut holes and insert hoses into the BMP device …. as required….  To Delaware Riverkeeper Network’s knowledge, despite reports and evidence being given to FERC, no action was taken by FERC on this flagrant violation.

In addition to the obvious concerns this raises about a government agency’s failures to appropriately act in the face of illegal activity it is responsible for overseeing, states often rely on FERC to ensure environmental compliance and count on FERC regulatory mandates to ensure protection of water resources and the environment – in both instances this reliance is misplaced.

FERC’s compliance reports for the TGP 300 line and the Columbia 1278 line rarely listed non- compliance concerns, despite the fact that there had been dozens of documented instances of noncompliance, including photo and/or video proof, by either County Conservation District employees or the public. FERC’s failure to enforce its own laws and regulations is particularly concerning given that violations of environmental laws and permitting are routine for the pipeline industry. For example:

• The Pike County (PA) Conservation District issued 21 notices of violation (NOV) from July 26, 2011 to June 21, 2013 for the Tennessee Gas 300 Line Upgrade.  Of these 21 NOVs, 14 violations were for failure to maintain effective erosion and sediment controls (E&SCs); 14 violations were for presenting a potential for pollution to waters of the Commonwealth; 14 violations were for discharging sediment or other pollutants into waters; 17 violations were for failure to implement effective E&SC BMPs; 2 violations were for failure to provide temporary stabilization to earth disturbance; 2 violations were for failure to provide permanent stabilization to earth disturbance; and 21 violations of the Clean Streams Law. Altogether, there were a total of 84 violations. (Attch 1)
• From June 17, 2011 to April 27, 2012 there were 15 NOVs issued for the Columbia Line 1278 K pipeline. Of these 15 NOVs, there were 9 violations for failure to maintain effective E&SCs; 15 violations for presenting a potential for pollution to waters of the Commonwealth; 9 violations for discharging sediment or other pollutants into waters; 3 violations for failure to implement effective E&SCs; 9 violations for failure to provide temporary stabilization to earth disturbance; 6 violations for failure to comply with permit conditions; 7 violations for failure to implement effective post-construction stormwater management; and 15 violations of the Clean Streams Law. Altogether, there were a total of 73 violations. (Attch 1)

(1)    The one civil penalty levied for violations of law during pipeline construction was in 2019 for violation of wetlands protections by Algonquin Gas Transmission, LLC during construction of the Algonquin Incremental Market (AIM) pipeline project. See Algonquin Gas Transmission, LLC, Docket No. IN19-2-000, Order Approving Stipulation and Consent Agreement, 166 FERC ¶ 61,012 PDF (January 7, 2019)

Complete People’s Dossier: FERC’s Abuses of Power and Law 
available here.