UNITED STATES OF AMERICA BEFORE THE

FEDERAL ENERGY REGULATORY COMMISSION

Tennessee Gas Pipeline Company ) Docket No.: CP11-161 OPPOSITION OF GEORGE FEIGHNER TO TENNESSEE’S

MOTION FOR LEAVE TO FILE AN ANSWER

George Feighner, of 10 Mountain Way, Montague, NJ 07827, by his counsel, David Wallace, 399 Clove Road, Montague, NJ, 07827, states as follows by way of opposition to the Motion of Tennessee Gas Pipeline (“TGP”) to file an Answer to Feighner’s request for rehearing.

TGP argues that it is providing a full record for decision by this motion. However, TGP does only three things:

1. TGP repeats only the most general conclusions about engineering solutions to fit its pipeline to the NPS Easement.

2. TGP only adds collateral documents never intended to substitute for the requisite Deed or Judgment for description of an easement.

3. TGP misstates the record and chain of title with the Sussex County Clerk by saying it amounts to a “grant” of limited easement rights, when the chain of title is silent on the issues up until the time of the 1974 United States Deed. Under New Jersey law, the recorded title is the only relevant chain of title.

If TGP were completing the record on engineering, it would provide meaningful details on engineering inconsistencies that are clear in prior comments of Steven Vitale and based upon common sense. TGP does not.

If TGP has an appropriate Deed or Judgment, it didn’t record it with the partial recording in 2005 and it hasn’t offered them here. The only such documents are the 1974 Deeds into United States that reserve rights-of-way for “gas pipelines.” If any 1955 Judgment included

boundaries, metes and bounds, legal descriptions, indicia of specific Easements and directed that recording be undertaken to memorialize the easement, TGP has not produced it.

TGP’s filed record of the 1955 proceedings are clearly incomplete. TGP belatedly recorded a portion of the documents in 2005 to try to “un-ring the bell” after the United States Deed in 1974. That Deed referenced the easements area in its metes and bounds and reserved from its condemnation and ownership any claims to “rights-of-way” for “gas pipelines.”

If TGP had any such recorded documents, it could state that there is a chain of title “granting” easement rights that are as limited as they argue. But, TGP provides only erroneous conclusion about the chain of title and no specific pre-1974 document that limits the easements as it has alleged.

There are only Orders specifically addressing appointments of commissioners and the release funds. Some were filed and some are not. Those that were filed were only filed in 2005 and well after the United States Deeds.

TGP again tries to justify Loop 323 without a full record. TGP offers over a hundred pages of new Exhibits. This implicitly admits an insufficient record, particularly because its partial filed record of the 1955 proceedings is obviously not complete, even with the attachment of Orders never filed in 2005. TGP asks for the extraordinary relief of condemnation based upon an inadequate record. TGP now offers parts of the 1955 condemnation papers for the critical lots now owned by the National Park Service (“NPS”) – papers which are at best ambiguous. TGP’s Complaint clearly then sought an easement for a “pipeline” or “pipelines”, some which were filed only in 2005 and some of which were never filed. Notably absent is any document establishing an Easement by a reference to boundaries, metes and bounds or by any specific description of the scope of the Easement. TGP add a partial record of its muddled 1955

proceedings in an effort to explain away the need for rehearing. The Orders to appoint Commissioners and those release monies are clear on their face that neither Order was intended to create a recordable record of an Easement was intended. No intent to create a record of the Easement appears in any of those Orders, which would appear to be why TGP omitted the recording of two such Orders in 2005. See Exhibits 10, 11, 18 and 19 to TGP Motion to Answer.

The importance of rehearing is only emphasized because TGP simply begs the question again and again about what a proper presentation of the a chain of title and engineering to match the recorded Easement would look like.

TGP does nothing to explain away two basic facts:

1. Douglas Reichenbach of the NPS, Supervisor to John Donohue, wrote to Senator Toomey on June 25, 2012 to explain that TGP had never properly applied to use the NPS Easement and that if TGP had, NPS would be compelled to grant a proper application. See Exhibit E to Feighner’s Request for Rehearing.

2. The Sussex County Recorder of Deeds has a United States Deed establishing an Easement for gas “pipelines” in 1974. This Deed was prepared by the United States through its own condemnation, then authorized by Congress. TGP had never submitted a Deed of Easement or Judgment with a legal description of the Easement – not in 1955 and not in 2005. The United States recorded the Easement rights where TGP failed to do so. Those easement rights are broadly stated and not explicitly limited even to cite often cited 50 foot width.

1. TGP’s Answer Does Not Meet The Threshold For Acceptance.

    

   TGP argues that it should be permitted to Answer to “complete” the record or assist the

   Honorable Commissioners. Idaho Power Company 95 FERC par. 61,482 and 62,717 (2001) and Delmarva Power and Light 91 FERC par 61,098 (2000). However, TGP’s proposed Answer does nothing of the sort. The record remains misstated and incomplete.

   TGP attempts to truncate the FERC record and proceed with no record at all any NPS proceedings to establish its easement rights. Its Answer does not advance any reasonable basis to shorten the hearing process and avoid rehearing. TGP argues that it would be inappropriate to engage in “protracted debate and litigation with the time-frame for the needs to which the underlying proposal is addressed.” Citing Vermont Yankee Nuclear Power Corp. V. Natural

   Resources Defense Council, Inc., 435 U.S. 519, 551, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). Vermont Yankee is not a license to avoid the law. The cited passage concerns protracted debate about the comparison of “environmental effects” of alternative proposals. Comparing environmental distinctions is quite different from violating the APA by refusing to engage in any lawful process at all. The parties have a right to an NPS process on the right to use the easement. It is not a question of abstruse environmental comparisons, but a question of taking a citizen’s land against his will and in despite of a failure to make the pre-requisite application to NPS. There is no environmental debate here, because all admit that Loop 323 is worse. The need here is due process, which is not optional.

   The Motion to Strike by the Riverkeeper and Sierra Club is correct in stating that the TGP motion is improper under 18 C.F.R. § 385.713(d). TGP’s motion should be stricken. A motion cannot substitute for a full and proper hearing of the matter. It is inconsistent with the purposes of a hearing before FERC. And, TGP’s own documents only emphasize that tries to prejudice its own rights to use the NPS Easement by confusing, incomplete and ambiguous records..

2. The Record Is Inadequate To Show That TGP Can’t Use The NPS Easement. ReHearing Is Required.

    

   TGP again implies that following the Administrative Procedures Act, 5 USC 500, et seq. (“the APA”) would be futile. This argument is simply improper. TGP still avoids the application to NPS as described in the Reichenbach letter to Sen. Toomey. By definition the matters has not been fully heard because TGP has never applied to have the issue heard before NPS. TGP adds more paper and more uncertainty with a partial filing of its 1955 condemnation records – with the most important document still missing. And that would be a Deed or Judgment with a boundary and property description describing the Easement.

   TGP argues that its Answer would complete the record, and yet TGP never addresses the problems that jump from the Reichenbach letter and the APA. Its Motion adds nothing to the record.

   TGP is trying to speak for an agency that has not official spoken on the issue. By citing the APA, the thrust of the Reichenbach letter is two-fold, 1. TGP has to present its engineering for the Easement in sufficient detail and the public must be given an opportunity to weigh in on the engineering of the use of the Easement; 2. The NPS cannot have a final position on the matter until the matter has been presented under the APA.

   Respectfully, this Honorable Commission has required that TGP follow the processes for approval before the Army Corps of Engineering, County Soil Conservation agencies, etc. There is no lawful basis to avoid the lawful process before NPS. TGP’s attempt to file an Answer is just as inadequate to avoid the NPS application as it would be to avoid an application to the Army Corps or any other agency.

3. The United States Has Indeed Spoken and the Mineral Leasing Act Is Irrelevant.

    

   TGP again argues that the Mineral Leasing Act requires an Act of Congress for the use of the Easement. Congress however has acted. Congress authorized the taking that happened in 1974, and by which the United States took property in condemnation but carved out the right to run gas “pipelines” across the property. Had TGP actually filed a Deed for only “one single pipeline”, perhaps the United State would have been more restrictive. But, the United States Deed is the only one of record on the subject. TGP surely cannot force Congress to undo what it did in 1974. Ironically, by failing to do its job in 1955, TGP benefits from an expansive exception in the United States Deed – if indeed the missing legal description of the Easement would have been as restrictive as TGP suggests. Again ironically, TGP tries to undo what Congress did by TGP’s partial filing of its 1955 proceedings decades later. And that partial record is offered to suggest enough clarity in the record to avoid rehearing.

   TGP’s entire argument on the Minerals Leasing Act adds nothing. That argument requires that the broad language for rights of way in 1974 Deeds be read out of the record. The Minerals Leasing Act further says nothing about engineering of a single pipe solution even if the United States Deeds did not reserves rights for “Pipelines.”

   The United States Deed however is also consistent with what little record there is here. The Complaint, which was never filed until 2005, references the Natural Gas Act, 15 U.S.C.A. 17, which allows for the condemnation of land for the construction of a pipeline or pipelines.

   Paragraph 3 of TGP’s Complaint indicates that its purpose is to construct “a pipeline or pipelines”. The Complaints against Kerr and McCarty are attached to TGP’s Motion to Answer.

   Again, TGP now sandbags its own record by stating that the Complaint allowed for only one pipe in the ground, when it fact the Complaint is at best ambiguous. Further, the Complaint

   is not a document intended to be a final, recorded definition of property rights. Filed Deeds and Judgments do that, as shown by TGP’s practice at the time.

    

4. TGP Cannot Supply An Adequate Record By Motion At This Late Date By These Documents.

    

   TGP is mistaken on the effect of its unrecorded and late recorded documents. Whatever effect they may have had as between the parties to the 1955 condemnation, they are cannot alter the state of title and the easement interests memorialized by the United States in 1974. New Jersey explained the significance of recording as follows:

   1. Recordation of a deed serves to protect creditors. By statute, an unrecorded deed is void and of no effect against subsequent judgment creditors without notice, and against all subsequent bona fide purchasers and mortgagees for valuable consideration, not having notice thereof, whose deed shall have been first duly recorded or whose mortgage shall have been first duly recorded or registered; but any such deed or instrument shall be valid and operative, although not recorded, except as against such subsequent judgment creditors, purchasers and mortgagees. [Citing N.J.S.A. 46:22-1 and Tobar, Constr. Co. v.

      R.C.P. Assocs., 293 N.J. Super. 409, 413 (App. Div. 1996)] (noting that "actual or constructive notice is required to affect the rights of third parties such as judgment creditors").]

       

   2. Thus, an unrecorded deed "is perfectly efficacious in passing title from grantor to grantee, subject to all subsequent recorded liens against the grantor and subject to potential divestment by a subsequent bona fide grantee without notice." Siligato v. State, 268 N.J. Super. 21, 28 (App. Div. 1993).

    

   H.K. v. State, Dep't of Human Services, 877 A.2d 1218, 184 N.J. 367 (2005) As noted, N.J.S.A.

    

   46:22-1 required recordation for a conveyance to take effect as against third parties. That law is now codified at N.J.S.A. 46:26A-12:

   Effect of recording.

    

   1. Any recorded document affecting the title to real property is, from the time of recording, notice to all subsequent purchasers, mortgagees and judgment creditors of the execution of the document recorded and its contents.

       

   2. A claim under a recorded document affecting the title to real property shall not be

      subject to the effect of a document that was later recorded or was not recorded unless the claimant was on notice of the later recorded or unrecorded document.

       

   3. A deed or other conveyance of an interest in real property shall be of no effect against subsequent judgment creditors without notice, and against subsequent bona fide purchasers and mortgagees for valuable consideration without notice and whose conveyance or mortgage is recorded, unless that conveyance is evidenced by a document that is first recorded.

    

   Id. Source: N.J.S.A. 46:21-1; 46:22-1.

    

   The United States Deed is in fact the document that says what the Easement is. NPS would need an Act of Congress to condemn any additional rights other than those condemned when Congress directed the creation of the Delaware Valley National Park and Recreation Area. The United States was a third party to the unrecorded 1955 proceedings and duly recorded easement rights for gas “pipelines.”

   The error in TGP’s approach is aggravated by its misstatements about the chain of title. On pages six to seven, TGP states, “In this condemnation action [in 1955, TGP] requested and was granted, the right to place one single pipe line under said right of way and easement.” Emphasis added. In fact, its Complaint asked quite clearly for “a pipe line or pipe lines” in paragraph three. Moreover, the supposedly crucial reference to “one single pipeline” appears only in that ambiguous Complaint, and that was not even made of record until 2005. In fact, there are no Orders but those intended to appoint Commissioners and direct the release of monies. Nothing that TGP has filed stated that it was a “grant” of anything, much less a recorded

   “grant” defining limited easement rights. What TGP really says is that the inference should arise that the proper grant would be consistent with the Orders that it has now produced. Yet, two of these Orders were never of record and could not have bound the United States when it took title in 1974. Nor could the order for the release of money, filed in 2005, add anything at all to the “chain” of title. The latter says nothing about the number of pipelines. The former did refer to a

   “pipeline” in ordering the Commissioners to proceed. TGP apparently never thought to file the latter in 2005, since it was not a “grant” and the number of pipelines was irrelevant to the amount of damages to be assessed by the Commissioners pursuant to that Order.

   TGP further states on page seven, “The chain of title shows that the federal government took title to the Kerr property subject to this Easement.” Emphasis added. “This Easement” refers in TGP’s argument to an Easement for “only one pipeline.” TGP suggests that this chain of title specifically limited the Easement to “only one pipeline.” But, that is rhetorical sleight of hand and not what the chain of title said in 1974. The numerous Deeds recited do not contain that limitation at all. And the United States did not adopt any of the general exceptions for “utilities” in the prior Deeds, but stated its own clear Easement language.

   Nor would the prior Deeds limit the United States if they had been specifically limiting. The United States recorded the reservation of Easements for pipelines. As noted in the Request for Rehearing, Easement rights are lawfully created by such Deeds, even if the process is unconventional.

   TGP Deeds of Easement for the time period of the original pipe were also consistent with the right not only to expand the pipeline, but they explicitly reserved the right to construct and maintain “pipelines”. See Struble Deed to TGP attached hereto as Exhibit A. The possibility of co-locating future pipelines is consistent in TGP’s documents from this time period and in the United States Deeds.

   The Struble Deed also describes the boundaries and references the property affected by description of the original filing of the Owner’s Deed. These are the elements of a document intended to be a record of property rights. TGP has offered nothing looking anything like such a filing. Its Orders to “appoint commissioners” or “release funds” in condemnation were just what

   they say, and not Judgments to record Easements. The Order to Appoint Commissioners was not filed, even in 2005. Of course, it was not intended to, nor was it appropriate as a filing to record an Easement.

   Assuming that the United States Deeds had never been filed, what would TGP be left with? TGP made a muddle of the record between 1955 and 2005, and in this proceeding, with belated filings, absent filings and ambiguous documents. Surely the notion that TGP has an adequate record herein must fall. If anything, TGP’s motion has only added to the complexity and confusion.

   Respectfully, under the APA, it is not too late to demonstrate that the record was inadequate by offering clear documents such as the United States Deeds and the Reichenbach letter. These documents emphasize and demonstrate what was missing in the FERC record. It is too late, however, for TGP to fill in the blanks by a Motion to Answer. What TGP really wants is appear to be filling in the gaps from the record completed in May. The voluminous records offered now implicitly admit that the record before FERC was inadequate.

   TGP’s analysis of the Easement language has not only ignored the United States Deeds, but also the words used in its own documents. The definition of a “pipeline” appears at http://www.aga.org/Kc/glossary/Pages/p.aspx, The American Gas Association defines “pipeline” as, “All parts of those physical facilities through which gas is moved in transportation, including pipe, valves, and other appurtenances attached to pipe, compressor units, metering stations, regulator stations, delivery stations, holders, and fabricated assemblies.“ This is consistent with the use of the word elsewhere in the EA and other parts of the record. A pipeline is not just a single pipe. A railway does not become “railways” when there are several tracks.

5. TGP’s Engineering Betrays Prejudice And Is Incomplete On Its Face. This Is Confirmed By Expert Review Of Steven Vitale.

    

   TGP further argues that its engineering issues have been adequately vetted and yet the parameters of the Easement in question were not even offered by TGP as part of the record. The United States Deeds were offered by Feighner to demonstrate the insufficient record. As stated by Reichenbach, TGP never presented the analysis required by the APA to vet their right to use the Easements. Otherwise, TGP would not be moving to attempt it now by other means.

   Applying to NPS would require engineering alternatives to fit the scope of the Easement. That cannot have been done since there is every indication that TGP passed over the NPS process and the applicable Deeds in the first place. With so much that was never done in the original hearing, TGP now asks for yet greater indulgence in it summary and incomplete attempts to engineer itself out of the NPS route.

   A common sense review of TGP’s statements show that they have not been clarified the engineering issues in any reasonable detail. Steven Vitale’s participation in the proceedings demonstrates yet more strongly that TGP avoids the engineering necessary to justify Loop 323.

   TGP improperly tries to rule out a safe use of a 50 foot Easement and a single pipe

    

   option.

    

   Steven Vitale, a veteran of the gas industry and familiar with gas pipeline construction, participated in the proceedings prior to May 29. The TGP engineers then started very generally that crossing the NPS Easement area would be impossible. The record they created was incomplete as a result. When Vitale suggested that a 36 inch pipe, or a slightly larger diameter pipe, accommodate the capacity of the existing 24 inch pipe and the planned 30 inch pipe, there was no real engineering response. He suggested horizontal directional drilling (“HDD") to cross the NPS property. There was no substantial response and no attempt to engage on the subject of

   finding an engineering solution.

    

   TGP’s bias is to make the NPS Easement impossible to use. To achieve this, their concepts are stated summarily and without meaningful detail or analysis. On page 9 of its recent motion, TGP asserts that a 42 inch pipe would not be viable to combine the 24 and 30 inch pipes. TGP assumes an unnecessarily large diameter pipe to combine the gas flowing through the two pipes. Vitale has offered that a 38 inch pipe would handle the same capacity as a 24 and 30 inch pipe. The size of pipe is not critical to use of the NPS Easement, though it does betray TGP’s bias.

   TGP attempts to use the HDD radius and drill length to rule out the use of the existing NPS Easement. The HDD radius allegedly is so large that TGP cannot drill under the River and then stay within or surface within the NPS Easement area. TGP implicitly alleges that the length of the drill must overshoot the Easement. Common sense shows that TGP is trying to avoid the work that creates solutions. If TGP can choose where to begin drilling, it would greatly enhance its ability to fit the pipe to the available area. TGP of course can choose a better beginning point. The Pennsylvania shore is controlled by the Pike County Commissioners. They have favored the use of their own land as well as route modifications that increase safety for school children in the area. They oppose Loop 323 and have repeatedly called for mediation to work through the issues with all interested parties. TGP has refused.

   There is also no engineering whatsoever offered to show why the HDD drilling cannot be shortened by beginning at a lower depth. Excavating is an obvious option to lower the point at which HDD begins and ends. TGP only begs the question because its record is inadequate. TGP asks FERC to assume a fixed beginning and ending point for the HDD, which is not justified by the facts or sound engineering.

   TGP leaves the parties guessing about the beginning and ending point for this supposedly impossible HDD project. Apparently, TGP posits two fixed beginning and ending points for HDD from Pennsylvania all the way beyond the eastern boundary of the NPS property in one operation. It is true that the 24 inch pipe runs straight through the NPS lands but turns more directly West as it approaches the shore of the Delaware River. At this point, there is a 200' x 330' intended Easement area, as shown on the 1955 Certification of Lingo attached to the Request for Rehearing. That turn may not fit the HDD radius. But, there is no showing that HDD cannot proceed from both the west and east to meet within the 200' x 330' Easement area.

   In any event, the United States Deeds record the center line and existence of the Easement area, but they do not limit the width of the Easement. TGP has far more freedom than it has alleged. The unrecorded documents from 1955 are instructive on the configuration of the existing pipeline, but they do not dispose of the issue of maximum width because they were not timely recorded.

   TGP also need not proceed by HDD through the NPS Easement area. It could work within a conventional trench and excavation.

   Nor does TGP discuss or engineer the necessary depth of the trench and facilities to tie into the HDD coming from Pennsylvania under the river.

   Yet another TGP straw man is the issue of above-ground facilities where these pipes tie together. As Vitale has confirmed, there is no reason why these facilities cannot be underground. Nor is there any showing that any Easement language forbids above-ground facilities. The United States Deed records broad and general Easement rights.

   As cited above, the AGA definition of “pipeline” includes, “All parts of those physical facilities through which gas is moved in transportation, including pipe, valves, and other

   appurtenances attached to pipe, compressor units, metering stations, regulator stations, delivery stations, holders, and fabricated assemblies.“ Nothing prohibits the use of other equipment to facilitate either co-location or a single pipe solution, whether above or below ground.

   TGP ignores the options within the existing Easement area that was apparently intended to be 200' x 330' adjacent to the water line on the NPS property. Whether NPS drills from this area or to this area from other lands, excavating to depth would solve the HDD drill length issue. In terms of workspace requirements, TGP has never provided any specifics for addressing any of the necessary parameters for workspace. They only provide conclusions and an inadequate record of any real attempt to engineer a solution. However, a 200' x 330' space is sizeable.

   TGP’s 2010 map does however plot favorable and viable HDD entry points. This contradicts their drill length straw man. Attached as Exhibit B hereto is a map with several proposed HDD models consistent with the viable HDD using the NPS lands. TGP did engineer a better route in 2010 and that was approximately in line with Vitale’s proposals.

   Workspace requirements again are engineered, not predetermined. The necessary science is applied to make a project fit safely within its parameters. For example, TGP's proposed workspace diagrams show a very generous area for storage of excavated soils. This would expand the width of the workspace (though not necessarily the Easement). The simplest solution to restricted space is to carry excess soil away by truck where it will not fit within the space allotted. Again, there is nothing in the record showing any attempt to deal with the obvious solution to staging various aspects of an excavation. The engineering simply has not been done. Respectfully TGP should be held to its duty to show that it is actually engineered possible solutions, not simply the least expensive and most convenient solution.

   TGP ignores the distinction between a temporary workspace and an Easement. Not a

   single citation in any of its motion papers show that Congress must authorize temporary workspace. While an Easement can be used to define temporary workspace, an Easement is not required. There is no showing that NPS cannot grant temporary workspace rights if need be.

   Reasonable access to the Easement area is also normally permitted by travel outside of the Easement area itself. As pointed out by Douglas Reichenback to Senator Toomey, TGP has never applied to make use of the NPS property.

   Even with workspace issues, the route across the existing Easement may indeed be the least cost route. Even if this ½ mile of piping were to cost twice that of an open field installation

   it is still a length of installation 1/7th that of the route they propose. Thus, the route may indeed

    

   be the least cost route.

    

   TGP’s obstinance begs the question of whether TGP’s issue has to do with NPS restrictions on subleasing of the Easement. The Struble Easement, for example, is broad enough to accommodate subleases for telecommunications. If such a business plan is the TGP motivation forcing the NPS route, TGP should have obtained a Certificate of Public Convenience and Necessity for those uses. The question also arises whether TGP can simply route any other uses around the NPS lands by less destructive means. Fiber-optic lines could possibly diverge from the gas pipeline at NPS lands and follow the public roads with far less disruption than the proposed Loop 323. At the very least, that scenario deserves exploration.

   Steve Vitale has made it clear that comparable pipeline installations occur in urban environments as well as in the forest. Often such installations need to occur within a workspace of 2 traffic lanes and with many underground interferences. This is the nature and reality of urban pipeline installation work. It would be meaningful to examine TGP and other transmission company installations to compare how those installations occurred within such confined

   workspace limitations and to overlay these work activities on the NPS existing Easement. As previously noted, TGP is willing to work within a 50-foot Easement to the East of Loop 323 and to co-locate within 15 feet of the existing pipe. It has disproved its own straw man of space restrictions.

   TGP also uses an economic straw man to rule out use of NPS lands. If indeed a single pipe is all that is allowed within the NPS Easement, TGP does nothing to create a record to substantiate the claim that very temporary service disruptions are impossible for the existing 24-inch pipe. Again, common sense shows that they have not made the analysis required in a proper record. TGP refuses to avail itself of common sense solutions for analysis on the issue of combining the 24 and 30 inch pipes as they transit NPS property.

   Sound engineering and logistics would take a detailed look at TGP’s contractual obligations and options. Service interruptions happen for various reasons including maintenance and emergencies. Service interruptions do not destroy the viability of the contractual arrangement, much less the integrity of energy policy or TGP’s position before FERC. Supplies are diverted, excess capacity is substituted and resources are brought to bear to compensate for service disruptions of any type. TGP is a large company with many resources – in terms of dollars but also gas supplies. It defies reason to assume the TGP is unable to make arrangements to compensate for specific disruption caused by any particular engineering issue on this project.

   Seasonal demand is a well-known variable that creates opportunities to minimize service interruptions. May, for example, has diminished heating and electric generation loads. In May, there is excess capacity and diminished demand. There are other months with similar opportunities. The opportunities to compensate for service interruptions and reroute excess capacity are maximized within these low flow time frames.

   As an example, if the existing line across the NPS property were to completely rupture (like has happened to TGP and others in various parts of the country), the line would be shut down. This is typically accomplished within about two hours. During that two hours, non-critical loads are shed, gas flows are rerouted via other pipelines, other facilities are put on line to compensate the gas system requirements as needed. That is in an emergency. With proper planning, obviously the results are better.

   If TGP insists that a planned short term interruption is out of the question, it still has a remedy. As clarified by Steven Vitale, the use of standard industry equipment, such as the T.D.Williamson Hot Taps and Stopple equipment allow for a “non-interruption” method of installation. TGP should be very familiar with such equipment and has likely used this many times during their normal installation work.

   TGP’s supposedly contractual limitations simply go without explanation. Like the engineering problem, the service interruption issue requires real work and logistical analysis. On page 9 of its motion for leave to answer, TGP makes the most general suggestion that any interruption at all would somehow irretrievably damaging to this process. No contractual languages offered. No logistical analyses of compensation mechanisms are discussed. TGP simply asks for the rights of condemnation despite unexamined methods to work around any potential service disruption. This is by definition in an adequate record. TGP makes no showing that it’s even attempted to address this issue with those parties who have contracted to accept the gas supplied through this pipeline.

   TGP implies that temporary service interruptions create losses that cannot be compensated in dollars, or even dollars within its rate base. The service interruption could not possibly outstrip the costs of Loop 323. Even interruptions were compensated in dollars rather

   than the diversion of excess capacity from other areas, the rate payers would in fact benefit by cost reductions. It would be improper for TGP to insist upon a higher rate base under this scenario. But, clearly, no solution was sought in any serious way. Contrary to TGP’s assertions, the integrity of the process is only served by eliminating Loop 323, even in the face of possible service disruptions.

    

6. With So Many Unresolved Issues In The Record, The Parties Are Well Served By Meeting To Resolve Their Issues.

The Pike County Commissioners have sought a meeting to work through the issues and solve the Loop 323 dilemma. Feighner has made the same request. TGP has refused.

Respectfully, a process to sit the parties down and work through the issues would be serve all parties well and enhance this process.

CONCLUSION

For all of the foregoing reasons, intervener George Feighner respectfully submits that rehearing is appropriate and that the Motions to Answer and Answer proffered by FERC should be denied and stricken from the record.

Respectfully submitted, David Wallace

Attorney for George Feighner, Intervener

PROOF OF SERVICE

This is to certify that the within document was served on all participating parties in this application electronically or by prepraid first class mail on this 10th day of August, 2012.

Dated: Montague, New Jersey, this 10th day of August, 2012

David Wallace, Attorney for Intervenor Feighner

Application of Tennessee Gas Pipeline Company for a Certificate of Public Convenience and Necessity

FERC Docket No. PF10-23

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