Monday Morning Pipeline News – April 8, 2013
Accurate, complete information about how the pipeline decision-making process unfolded over the last two years is still very difficult to find; whether deliberate or accidental, misinformation has occurred and continues.
And I’ve been annoyed to see the Centre Daily Times patronizingly characterize residents struggling to bring the Borough into compliance with the Community Bill of Rights as somehow late in mobilizing.
If the Centre Daily Times staff was fully aware of the plan and the safety risks posed by a 12″ high pressure natural gas pipeline through a densely populated area prior to mid-March 2013, when the citizens finally grasped the implications through a small neighborhood information meeting with Columbia Gas representatives, then the CDT failed to properly cover the story so that citizens could be informed earlier.
To my knowledge, neither the Borough, nor Penn State, nor Columbia Gas ever filed a timely public notice of public meetings about the pipeline, in accordance with Pennsylvania Sunshine Law procedures. Letters to residents along the route and emails to the Highlands Civic Association two days before meetings don’t fulfill that responsibility in letter or in spirit. I don’t know if that’s a violation of the Sunshine Law or if there’s a loophole somewhere that they wiggled through; I’m investigating the public notice angle along with trying to gather other information. But if public notice should have been provided, and wasn’t, then the CDT should be as affronted by the violation as residents already are.
Trying to track down more information about who made decisions, when those decisions were made, and based on what evidence and input, I submitted a Right-to-Know request on April 3, seeking “Meeting notes, minutes, correspondence, including regular and email, internal and external, among State College Borough staff, elected representatives, PSU staff and officials, and Columbia Gas staff regarding proposed 12″ natural gas pipeline siting and installation – January 2011 through the present. Also engineering and safety reports related to pipeline planning.” Right-to-Know Officer Tom Fountaine received the request the same day and responded that he would notify me when the documents are ready for review.
There’s at least one other investigative pathway available, noted by Susan Venegoni at the April 1 Borough Council meeting. Under the Home Rule Charter, the Council “as a body, or through a committee thereof, shall have the power to make inquiries and investigations into the affairs of the Municipality and its government and into the conduct of any municipal department, office or agency, or any of the committees thereof.” (Article V, Section 501, Item 6).
If, as it seems, Council members were also under-informed or misinformed during the decision-making process up to now, they can also take steps to fill in those knowledge gaps.
Borough of State College – Manager & Council
Borough Manager Tom Fountaine is currently drafting a letter to Columbia Gas explaining the reasons for the permit denial. The permit denial was requested by the resolution adopted by the Borough Council April 1. The letter is required by Ordinance 2005, laying out the municipality’s authority to impose reasonable restrictions on activities conducted in the public rights-of-way. Ordinance #2005 is available online in the Nov. 19, 2012 Council meeting minutes, pages 23-45.
The phrase “public health, safety and welfare” appears several times in the ordinance, which also refers “to the applicability of ordinances or other regulations,” including, presumably, the Community Bill of Rights Charter Amendment that specifically bars new fossil fuel energy infrastructure within municipal boundaries.
The letter – due by Friday, April 12, but likely to be released mid-week, could include several points, including safety concerns, decreased property values, decreased tax revenues, and the Community Bill of Rights barring new fossil fuel infrastructure and setting out a community right to a sustainable energy future. Several Council members reportedly support including the Community Bill of Rights in the denial letter, while others don’t, and the charter provision wasn’t included in the Council’s formal resolution from April 1.
My read of Ordinance 2005 and the ministerial/legislative point raised last week by Borough Solicitor Terry Williams, is that permitting lies within the discretionary power of the Borough Manager, so it’s possible Fountaine could include the Community Bill of Rights in the denial letter, directly on behalf of residents, without specific instruction from the Council. Key provisions of Ordinance 2005:
- Section 15. Denial of Permit. “…The Borough Manager or his/her designee may deny a Permit in order to protect the public health, safety and welfare, to prevent interference with the safety and convenience of ordinary travel over the Rights-of-Way, or when necessary to protect the Rights-of-Way and its users…The Borough Manager or his/her designee may consider one or more of the following factors:…(4) The applicability of Ordinances or other regulations of the Rights-of-Way that affect location of Facilities in the Rights-of-Way…”
- Section 16 states “Permittees hold Permits issued pursuant to this Ordinance as a Privilege and not as a right.”
- Sections 17 and 33 include provisions about fraud as a violation of the permit, prohibiting: “…the perpetration or attempt to perpetrate any fraud or deceit upon the Municipality or its citizens” and barring “…any material misrepresentation of fact in the Application for a Permit.” Those provisions may come into play if it turns out information provided in the original application was untrue, for example, Applicant’s designation of the proposed pipeline as a “distribution” line, rather than a “transmission” line.
- Section 33 also absolves the Borough of all liability “…for injuries to Persons, damage to property, or loss of Service claims by parties other than the Applicant or the Municipality and …For claims or penalties of any sort resulting from the installation, presence, maintenance, or operation of Facilities by Applicants or activities of Applicants…”
- Section 41 – “…Any conflict between the provisions of a Rights-of-Way Permit and any other present or future lawful exercise of the Municipality’s regulatory or police powers shall be resolved in favor of the latter.”
Many residents are strongly urging Mr. Fountaine to include the Community Bill of Rights as the central reason for the permit denial, because we see the Bill of Rights as the most effective way to shift the framework of the dispute with Penn State and Columbia Gas off the regulatory field, where they have an insurmountable advantage, and onto the rights field.
Within the regulatory system, pipeline proponents can effectively – if unfairly – portray residents and local elected leaders alike as ignorant non-specialists who lack the necessary qualifications to pass judgment on proposed energy production and distribution systems.
On the rights field, however, Penn State and Columbia Gas would be forced to publicly articulate the position they’ve implicitly held to this point: “The people of State College and their elected leaders have no right to protect their own health, safety and welfare and plan their own sustainable energy future as they see fit.”
Penn State University – Office of Physical Plant & Board of Trustees
Reportedly still considering options. Possibly relevant – the newly opened Institute for Natural Gas Research at Penn State – creating potential conflicts of interest if University leaders and staff feel compelled to choose natural gas over other energy sources to support the institute’s mission:
“The mission of the Institute is to conduct independent and impartial scientific research in the broad area of natural gas, ranging from exploration to production to utilization, working closely with industry and government partners to support the ongoing development of a natural gas-based economy.”
Strategic Planning Considerations: According to newly-released data from the Energy Information Agency, the US economy has already retreated to energy consumption rates last seen in 1997, due to the related drivers of higher energy costs and lower employment rates. It might be a productive exercise for OPP planners to think about how many buildings were on campus in the 1970s, and how much energy the campus consumed at that time, in case current trends continue and the most pressing question becomes “What can we salvage?” rather than “How much bigger can we grow?”
Reportedly still considering options.
No lawsuits have been filed yet, as far as I know. Possibly relevant: The vacancy of the Pennsylvania Supreme Court following former Justice Joan Orie Melvin’s resignation, which has left interpretation of Act 13 – adopted in February 2012, and then partially overturned in July 2012 – in a 3-3 limbo.
“…The bill would have stripped away local zoning laws, eliminated the legal concept of a Home Rule Charter, limited private property rights, and in the process, completely disempowered town, city, municipal and county governments, particularly when it comes to shale gas development…”
Pittsburgh CBS coverage of the current Supreme Court deadlock.
Fact-Checking Video by State College residents
Volunteers Needed to Table at Banff Film Festival
Javan Briggs writes:
“We have been offered the opportunity to have an informational table at the Banff Film Festival that is hosted by the Moshannon Sierra Club. The festival will take place on Friday (April 12) and Saturday (April 13) evening at the State Theater. We need volunteers to work the table. Volunteers will set up the table at 5:30 pm. Between 6 and 7 pm (when the show starts), volunteers will hand out informational flyers and talk to folks about the problems posed by the Penn State pipeline. We will focus on three main areas of concern: safety, sustainability, and community rights.”
Please email Javan if you can volunteer one or both evenings or if you have any questions.
Residents interested in learning more about the Community Bill of Rights and how it fits into the history of American social change movements that directly challenged dominate power relationships, may want to organize a Democracy School with instructors from the Community Environmental Legal Defense Fund – either a two-hour introductory overview or the full two-day course, or both.
I’ve attended Democracy Schools. They’re kind of like democracy reskilling workshops: useful, eye-opening and inspiring. If you’d like to be part of a State College area Democracy School, please email me and I’ll help coordinate scheduling with Chad Nicholson and other CELDF staff.
PSU Student Democrats Join Pipeline Opposition
Emailed to the NoPSUPipeline group this past week: “My name is Nadia Lehtihet and I am reaching out to you on behalf of the Penn State College Democrats. We are currently in a state of transition between boards, but we would like to offer our support as the PSU Pipeline is a target issue for us next semester. Our doors are always open if you’d like to speak with us about current projects, volunteer recruitment, etc. We look forward to working with you in the future. Thank you for all that you do.”
Topics of intense discussion among pipeline opponents:
- Did the Highlands route end up as the first choice due to negligent inattentiveness on the part of Borough, Penn State and Columbia Gas planners, who simply forgot to consider public safety issues? Was the choice motivated primarily by cost considerations? Was it a deliberate, calculated plan to shift risk from the university to the Borough?
- Should we give the benefit of the doubt to PSU planners? Did they simply not understand the risks of the Columbia Gas-chosen route?
- Is the Board of Trustees susceptible to arguments that doubling down on natural gas is a poor choice from a public relations point of view? Can they be persuaded that leading the way on collaborative energy planning with State College Borough residents to make conservation, geothermal and solar strategies work and enforce the Community Bill of Rights would improve the public image of the university?
- Why was Rob Cooper, director of Penn State Energy and Engineering, “disappointed” that the Borough Council advocated for citizens by adopting a resolution against the proposed pipeline, but not disappointed that Columbia Gas chose a dangerous route for the pipeline?
- Who should be regarded as “responsible” for decisions: individual staff members? Or institutions in their entirety?
- Who will ensure that the extra safety precautions promised by Columbia Gas will actually continue to be performed five, 10, 15, 20+ years down the road? Who will fund the extra safety precautions and pay for extra inspections for the next many decades?
- Do “NIMBY” accusations leveled at Highlands residents also apply to Penn State, whose decision-makers apparently considered but then rejected routes through campus for safety reasons?
- Why do some planners continue to equate the risks of water-caused disasters such as sinkholes with fireball disasters such as pipeline explosions when talking about the inherent riskiness of public utilities?
Thinking about engineering and planning, it’s crucial to look carefully at both initial capital costs and long-term safety costs, operating costs, maintenance costs, fuel costs, pollution costs and (most crucial) the cost of lost trust between residents and utility system planners.
For example, the argument that the Highlands route is cheapest only works if long-term costs are discounted, especially the costs levied by more-burdensome construction practices to reduce the likelihood of an excavation-related disaster later.
And the argument that a package of conservation, geothermal and solar strategies is the most expensive only applies if we ignore the probability that fossil fuel prices will rise with the ongoing depletion of easily-extracted deposits. What we really need – and what the Community Bill of Rights is designed to enable – are local energy production and distribution systems with components ordinary citizens can design, build, operate and maintain safely and effectively.
Another engineering topic of intense discussion: the difference between distribution lines and transmission lines, because Penn State and Columbia Gas officials had a hard time answering pipeline definition questions clearly at the April 1 Council meetings.
One resident located definitions of a transmission line as “typically greater than 10 inches diameter and carrying over 200 PSI” and a distribution line as “less than 10 inches, sometimes as small as a few inches in diameter and carrying from extremely low pressures (a few 10’s of PSI) up to 200.”
Another resident located the parts of the federal law that cover pipeline safety – 49 CFR parts 186 to 199. Here’s Section 192 and here’s Chapter I, Subchapter D and here’s information about housing densities.
Under 49 CFR § 192.3, a transmission line is defined as: “a pipeline, other than a gathering line, that: (1) transports gas from a gathering line or storage facility to a distribution center, storage facility, or large volume customer that is not down-stream from a distribution center; (2) operates at a hoop stress of 20 percent or more of SMYS; or (3) transports gas within a storage field. “
Nina White found the American Gas Association Pipeline Safety Fact Sheet. She forwarded the report to the Highlands list-serve, pointing out: “Not only did the proposed pipeline more clearly match the definition of a “transmission” line but the pipeline proposed by Columbia Gas and PSU seems to fall into the most highly regulated subset of gas transmission lines, the subset designated as High Consequence Area.”
From the fact sheet:
- “In general, a transmission line is a larger diameter line operating at a higher operating pressure and transports the natural gas between states, counties, cities, and towns. Distribution pipelines are generally the smaller diameter lines at lower operating pressures that deliver natural gas directly to local homes and businesses.”
- “High Consequence Area – HCA is not a term associated with the safety or condition of a particular pipeline. Instead, this term was created by the public, regulators and industry personnel to improve pipeline safety by focusing comprehensive inspections on certain transmission pipeline segments. Transmission pipelines that are located in areas where people live and work or are known to congregate on a regular basis are then deemed as being in an “HCA.” By regulation, this subset of transmission pipelines then receives the greatest level of inspection and have an added layer of protection to avoid accidents that otherwise would have the greatest (negative) consequence on the public.”
Another resident located Pipeline Integrity Basics – Kiefner, and concluded:
“The Highlands neighborhood route appears to fall within the Class 3 HCA designation. Sampling areas are one mile long, and 220 yards to each side of the proposed pipeline. A Class 3 area has 46 or more buildings intended for human occupancy [within that area]. Class 3 also covers pipelines within 100 yards of either a building or place of public assembly that is occupied by 20 or more persons on at least 5 days a week for 10 weeks in any 12-month period.”
The dilemma for planners wedded to the natural gas strategy to bring the West Campus Steam Plant into compliance with EPA emissions standards is that it’s all High Consequence Area between the East Campus Steam Plant and the West plant, because the West plant is smack-dab in the middle of town.
Centre Daily Times
- Natural gas leak closes Park Avenue for 13 hours (March 31)
- Pennsylvania Public Utility Commission to take safety role in State College pipeline project (April 2)
- State College won’t issue pipeline permit (April 3)
- Our View | Residents win the first round of pipeline battle (April 5
- Safety of residents a chief concern in pipeline project (April 6), including the Centre Region Fire Director Steve Bair’s inexplicably whimsical characterization of the “magical and special” pipeline.
- Proposed Gas Pipeline Sparks Heated Response at State College Borough Council Meeting (April 1)
- State College Borough Council Opposes Permit to Build High-Pressure Natural Gas Line (April 2)
- Borough Council, Columbia Gas to discuss pipeline with community (April 1)
- Community members protest Columbia Gas, Penn State pipeline (April 2)
- Deficiencies found in pipeline application, manager has ten days to issue permit (April 3)
- State College borough manager will not issue gas pipeline permit (April 3)
- Next steps for Columbia Gas pipeline uncertain after borough response (April 4)
- Video of April 1, 2013 Council Meeting
- Community Environmental Legal Defense Fund Op-Ed, by Thomas Linzey and Chad Nicholson: CELDF Op-Ed:
“…although not oft-admitted even to ourselves, energy policies within the Pennsylvania legislature and the U.S. Congress have long been written by the very fossil fuel corporations that those bodies are ostensibly supposed to control and regulate.
Waiting for them to do something is akin to waiting for the fox to board up the henhouse.
And so, people across the United States have begun to understand that if something is going to happen to prevent all of us from going up in smoke, that local communities must take the initiative to actually force a transition away from increased fossil fuel consumption and towards a sane, sustainable energy future…”
- Groundswell Op-Ed, by Braden Crooks:
“…If the Bill of Rights is invoked, it may be the first time a community has fought fossil fuel infrastructure on the basis that it violates their rights and not a more trivial issue like zoning or regulations. This fight is more than a question of what decision will be made about the pipeline between Penn State and Columbia Gas, it is an issue of who has say over what happens in the borough: the corporations, or the community who lives there…”