K&L GATES K&L Gates UP

17 North Second Street, 18th Floor

Harrisburg, PA 17101-1507

i 717.231.4500 www.klgates.com

July 15,2010 Daniel P. Delaney D 717.231.4516 F 717.231.4501 dan.delaney@klgates.com

Via Hand Deiiverv

Rosemary Chiavetta, Secretary Pennsylvania Public Utility Commission Commonwealth Keystone Bldg., 2nd Floor 400 North Street Harrisburg, PA 17120

Re: Application of Laser Northeast Gathering Company, LLC Docket No. A-2010-2153371

Dear Secretary Chiavetta:

Enclosed please find an original and three copies of Laser Northeast Gathering Company, LLC's Answer in Opposition to Motion of Vera Scroggins to File Direct Testimony with a Memorandum in support.

Copies of these documents have been served on the Presiding Officer and parties to this matter as indicated on the enclosed Certificate of Service.

Very truly yours,

Daniel P. Delaney PA Attorney I.D. 23955 Counsel for Laser North

Enclosures

ering Company, LLC

c-c: Hon. Susan D. Colwell, Administrative Law Judge (w/enc.)

Certificate of Service (w/enc.)

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BEFORE THE PENNSYLVANIA PUBLIC UTILITY COMMISSION c£ ^ >>

ADMINISTRATIVE LAW JUDGE SUSAN D. COLWELL PRESIDING

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Application of Laser Northeast Gathering Company, LLC for Approval to Begin to Offer, Render, Furnish, or Supply Natural Gas Gathering and Transporting or Conveying Service by Pipeline to the Public in Certain Townships of Susquehanna County, Pennsylvania.

Docket No. A-2010-2153371

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ANSWER IN OPPOSITION TO MOTION OF VERA SCROGGINS TO FILE DIRECT TESTIMONY.

Pursuant to Section 5.61(a)(1) of the Public Utility Commission's

("Commission's") regulations, 52 Pa. Code 5.61(a)(1), Laser Northeast Gathering

Company, LLC ("Laser") files this Answer in opposition to the motion of Vera Scroggins

to file direct testimony. Laser submits that the late filing of direct testimony raising new

issues at this stage in the proceeding is prejudicial to Laser and inconsistent with the

Commission's regulations and decisions. In support of its Answer, Laser respectfully

represents the following.

1. Admitted. By way of further response, Laser avers that a prehearing

conference was conducted in this case by presiding Administrative Law Judge ("ALJ")

Colwell on April 28, 2010. Protestant Vera Scroggins ("Ms. Scroggins") participated in

that prehearing conference. On the record, Ms. Scroggins provided argument on the

sufficiency of public notice of the application (Prehearing Tr. p. 21-3), and also

participated in the discussion of the procedural schedule for the case and identified the

information that she would request from Laser and the type of evidence that she would

present at the evidentiary proceedings (Tr. p. 30-3). Ms. Scroggins' statements at the

HA-244528 vl

prehearing conference clearly indicated an intention at that point to present testimony at

the evidentiary hearings. On April 29, 2010, the Presiding Officer issued her Second

Prehearing Order which contained the schedule discussed at the prehearing conference

and which was served on ali parties to the case. A copy of that Order is attached to this

Answer.

2. Admitted. Laser admits that Ms. Scroggins filed a protest and that she

has participated pro se in this proceeding. A copy of Ms. Scroggins' protest is attached

to this Answer. Since the motion is not supported by an affidavit or a verification, Laser

has no knowledge who Ms. Scroggins wishes to have serve as her counsel in this

proceeding.

3. Admitted. By way of further response, pages 4, 5 and 6 of that Order

state the Commission's procedures for filing written testimony. Page 6 of the Order

specifically states that parties were required to raise their issues in direct testimony and

would not be able to raise additional issues in testimony filed later in the case.

4. Admitted in part and denied in part. Laser admits that Ms. Scroggins did

not file direct testimony by the date stated in the scheduling order. Laser denies

however that she did not understand that her failure to submit written papers would

preclude her from presenting testimony in support of her protest. Even though Ms.

Scroggins has participated as a pro se litigant, she has been actively involved in all

parts of this case. She has participated in every procedural conference call and

frequently e-mailed her position on case procedural issues to the Presiding Officer and

parties. The Scheduling Order describing the Commission's written testimony

procedures was served on Ms. Scroggins. Although she stated an intention to present

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evidence and testimony at the prehearing conference, she has subsequently declined to

provide testimony in the case on two occasions. On June 9, 2010, Ms. Scroggins e-

mailed the Presiding Officer and parties that she would not be providing direct

testimony. On July 6, 2010, Ms. Scroggins e-mailed the Presiding Officer and parties

declining to provide testimony at the July 7, 2010 public input hearings. Both of these e-

mails are attached to this Answer. Laser submits, that the prehearing conference

transcript, the explanation of the Commission's written testimony procedures in the

Scheduling Order and the e-mail correspondence in this case establish that Ms.

Scroggins made a deliberate, informed decision not to provide testimony in this case.

The averments in this paragraph of the motion are inconsistent with the two e-mails

attached to this Answer in which Ms. Scroggins, as recently as a week ago, declined to

provide testimony in this proceeding.

5. Laser has no information concerning this averment and therefore denies it.

The consequences of Ms. Scroggins' decision not to file direct testimony on June 9 are

not excused by her status as a pro se protestant. The Commission has previously

recognized that neither the Commission nor an ALJ is under an obligation to alleviate

the burden associated with a party's lack of knowledge or assumption of the risk of

proceeding pro se. See Rosenblum v. Bell Atlantic, 1995 WL 945253 (Pa. P.U.C.) (slip

opinion at 10); see also Morningstar v. United Telephone Company of Pennsyivania,

Commission Dkt. No. C-20055486 (Initial Decision of ALJ Melillo dated August 14,

2007). Ms. Scroggins' decision to proceed pro se did not insulate her from the

procedural requirement of timely filing initial direct testimony in this case on June 9,

2010.

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6. This paragraph contains a conclusion of law to which no response by

Laser is required. By way of further response, Laser denies that reasonable grounds

exist to now reverse Ms. Scroggins' decision not to file direct testimony in this case. Ms.

Scroggins attended the prehearing conference and contributed to the establishment of a

procedural schedule. The transcript indicates her intention at that time to file testimony

and the e-mails attached to this Answer indicate that Ms. Scroggins deliberately chose

subsequently not to file direct testimony in this proceeding. The Scheduling Order

explained the legal implications of Ms. Scroggins' decision not to file direct testimony by

the original deadline established by that order. The motion does not establish or

provide reasonable grounds for her failure to file the direct testimony by the original

deadline.

7. Admitted in part and denied in part. Laser admits that the Amended

Scheduling Order schedules the filing of Laser's rebuttal testimony for July 26, 2010.

Laser denies that extending that date to August 6, 2010 to permit Laser to respond to

Ms. Scroggins newly-filed direct testimony would not prejudice Laser. The attorneys for

Earthjustice who have filed an appearance for Ms. Scroggins have also filed testimony

in the Commission's Marcellus Shale En Banc Docket at 1-2010-2163461. A copy of

that testimony dated June 11, 2010 is attached to this Answer. Ms. Goldberg presented

a summary of that testimony at the June 16, 2010 en banc hearing at Tr. p. 178-84.

That testimony discusses gas pipeline issues on pages 3-7 and specifically addresses

gathering lines on pages 13-16. Upon information and belief, Laser anticipates that if

Ms. Scroggins is permitted to file direct testimony, the testimony that wil! be filed will

contain the material and arguments contained in the June 11, 2010 Earthjustice

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testimony at Docket 1-2010-2163461 at pages 3-7 and 13-16. A review of that

document indicates that it raises a number of issues that have not been raised by the

direct testimony filed in this proceeding. It is also worth noting that none ofthe pipeline

issues in the Earthjustice June 11, 2010 testimony are contained in Ms. Scroggins'

protest. Extending the rebuttal date would not permit Laser to file and receive discovery

responses on this new testimony and to prepare an adequate response. Laser would

be prejudiced if additional testimony raising new issues was filed at this late stage of

this application proceeding. Moreover, Earthjustice should not be permitted essentially

to intervene very late in this proceeding to advance its views and agenda under the

facade of representing a protestant who indeed raised only very narrow issues

(regarding environmental impact) in her protest. As the Presiding Officer is aware, the

July 21 other party testimony filing date in the Amended Scheduling Order is designed

only to allow the parties to respond to the new information in LNGC Statement No. 1a

(supplemental, fiied June 17, 2010). The date was not added to the schedule to permit

the filing of initial direct testimony raising new issues.

8. Admitted in part and denied in part. Laser admits that the schedule

modifications requested by the motion would not require a change in the hearing dates

or otherwise result in any delay in the proceeding. Laser denies, however, that it would

not be prejudiced by the filing of additional direct testimony in this proceeding raising

new issues at this late stage. Laser submits that the late filing of such testimony would

be improper, unfair and violative of Laser's due process rights.

9. Denied as stated. Laser admits that the counsel for Earthjustice had

called about the motion prior to its fiiing. Laser's counsel indicated that he would review

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the motion upon its filing before responding. Subsequent review of the motion and

related materials has resulted in the filing ofthis Answer in opposition to the motion.

10. Admitted. Laser has also filed a memorandum of law in support of its

Answer which it incorporates herein by reference.

WHEREFORE, for all the foregoing reasons and those contained in the

supporting memorandum of law, Laser Northeast Gathering Company, LLC respectfully

requests the Presiding Officer to:

1. Enter an order denying the motion of Vera Scroggins to file direct

testimony, and

2. To grant whatever additional relief to Laser that is just and reasonable

under the circumstances.

Respectfully submitted,

K&L Gates LLP 17 North Second Street, 18th Floor Harrisburg, PA 17101-1507 (717)231-4500 (717)231-4501 (Fax) dan.delaney@klgates.com

Dated: July 15, 2010

/ Daniel P. Delaney

Counsel for Laser Ndrtbecist Gathering Company, LLC

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BEFORE THE PENNSYLVANIA PUBLIC UTILITY COMMISSION

Application of Laser Northeast Gathering Company, LLC for Approval to Begin to Offer, Render, Furnish, or Supply Natural Gas Gathering and Transporting or Conveying Service by Pipeline to the Public in Certain Townships of Susquehanna County, Pennsylvania.

Docket No. A-2010-2153371

VERIFICATION

I, Thomas F. Karam, hereby state that the facts set forth in the foregoing Answer

are true and correct to the best of my knowledge, information and belief and that I

expect to be able to prove the same at a hearing held in this matter. I understand that

the statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 (relating

to unsworn falsification to authorities).

Date: . 'i.A. 10 dM^ Thomas F.

Laser Northeast Gathering Company, LLC

ALJ Colwell's Scheduling Order,

Dated April 29, 2010.

BEFORE THE PENNSYLVANIA PUBLIC UTILITY COMMISSION

A-2010-2153371

Application of Laser Marcellus Gathering Company, LLC for Approval lo Begin to Offer, Render, Fumish, or Supply Natural Gas Gathering and Transporting or Conveying Service by Pipeline to the Public in Certain Townships of Susquehanna County, Pennsylvania

SCHEDULING ORDER

Second Prehearing Order

On January 19, 2010, Laser Marcellus Gathering Company LLC (Applicant) filed

an Application for a certificate of public convenience to begin to offer gathering and transporting

or conveying service by pipeline to the public in the Townships of Apolacon, Choconut, Forest

Lake, Great Bend, Jessup, Liberty, Middletown and New Milford in Susquehanna County,

Pennsylvania. Notice ofthe Application was published in the Pennsylvania Bulletin on January

30, 2010, at 50 Pa. B. 687. Applicant submitted proof on February 19, 2010 that the

Susquehanna Couniy Independent published notice ofthe Application on January 27, 2010.

The following protests were filed: on February 19, 2010, Laurie and Brian

Kaszuba; on February 20, 2010, Vera Scroggins; on February 26, 2010, Rebecca Roter; on

March 1, 2010, ETC Northeast; on March 5, 2010, Rita Chirumbolo Emstrom; on March 8,

2010, Silver Lake Association.

The following petitions to intervene were filed: on March 1, 2010, ETC NE

Pipeline; and Independent Oil and Gas Association of Pennsylvania (IOGA); on March 5, 2010,

Laurel Mountain Midstream LLC; on April 2, 2010, MarkWest Liberty Midstream & Resources,

LLC; on April 12, 2010, DTE Pipeline Company and Bluestone Pipeline Company of PA.

On April 1, 2010, the Office of Consumer Advocate (OCA) filed its notice of

intervention.

On March 18, 2010, Applicant filed Preliminary Objections to the protest of

Laurie and Brian Kaszuba. On March 30, 2010, the Kaszuba Protest was withdrawn.

On March 19, 2010, Applicant filed Answers to the petitions to intervene of

IOGA and Laurel Mountain. On March 23, 2010, Applicant filed a fetter confirming lhat they

had requested and received a 7-day extension for filing responsive pleadings.

On March 23, 2010, Applicant filed its Answer to ETC NE petition to intervene.

On March 26, 2010, Applicant filed individual Preliminary Objections to the

protests ofthe Silver Lake Association, Vera Scroggins, Rita Chirumbolo Emstrom, and

Rebecca Roter. On April 12, 2010, Rita Chirumbolo Emstrom withdrew her protest, thus

rendering the Preliminary Objections against her protest moot.

On March 30, 2010, nolice ofthe prehearing conference was issued, setting the

prehearing conference for April 28, 2010 in Harrisburg.

On April 2, 2010, MarkWest Liberty filed a Motion for publication of an

amended notice in the Pennsylvania BuUetin.

On April 2, 2010, Wiiiiam C. Fisher filed a response to the preliminary objections

to the Silver Lake protest, and Vera Scroggins filed a response to the preliminary objections

against her protest.

Also on April 2, 2010, Applicant filed an amendment to its Application, and a

letter from ETC Northeast stated that the amendment resolved its protest.

On April 21, 2010, an order denying the preliminary objections against Silver

Lake Association, Vera Scroggins and Rebecca Roter was issued. On April 26, 2010, Applicant

filed revised preliminary objections against Rebecca Roter.

2

On April 26, 2010, Michael D. Fiorentino, Esq., filed his entry of appearance on

behalf of the Silver Lake Association, and the Office of Trial Staff filed a notice of intervention.'

Prehearing memos were filed by Applicant, ETC Northeast, PIOGA, Mr. Fischer,

OTS, OCA, DTE/Bluestone, MarkWest, and Laurel Mountain Midstream.

The prehearing conference was held as scheduled. At the hearing, Superior

Appalachian Pipeline, LLC, presented a petition to intervene. The following attorneys attended

the prehearing conference: Daniel P. Delaney, Esq., for Applicant; Thomas J. Sniscak, Esq., for

ETC Northeast; Kevin J. Moody, Esq., for PIOGA; Brian J. Clark, Esq., for Laurel Mounlain

Midstream; James A. Mullins, Esq., for OCA; Adeolu Baicare, Esq., for OTS; Brian J. Knipe,

Esq., for MarkWest Liberty Midstream; John H. Isom, Esq., for DTE Pipeline and Bluestone

Pipeline; Michael D. Fiorentino, Esq., for Silver Lake Association; Elizabeth U. Witmer, Esq.,

for Superior Appalachian Pipeline, Inc.; and protestants William C. Fischer and Vera Scroggins

appeared pro se. •

Petitions to Intervene

Petitions to intervene were filed by ETC Northeast, Laurel Mounlain Midstream,

MarkWest Liberty, and Superior Appalachian Pipeline, and were not opposed by Applicant.

Petitions to intervene were filed by PIOGA and DTE Pipeline and Bluestone

Pipeline. Applicant specified that these were not opposed inasmuch as they were limiting their

interventions to the subject matter stated in their petitions.

All six petitions for intervention were granted as unopposed.

1 OTS also filed a petition with the Commission for permission to participate in this matter. Pending the Commission's response to the petition, OTS will be given full party status.

At the prehearing conference, Superior Appalachian Pipeline, Inc., presented its

petition to intervene, and Applicant was afforded additional time to respond.

Litigation Schedule

Following considerable discussion, the following litigation schedule was set:

Prehearing Conference April 28, 2010

Laser Direct Testimony May 12, 2010

Direct testimony of other parties June 9,2010

Laser rebuttal testimony June 24, 2010

Rebuttal testimony of other parties July 6,2010

Hearings July 14, 15 and 26, 2010

Includes oral rejoinder

Main brief August 9, 2010

Reply brief August 23, 2010

Due dates are in-hand and service of testimony, exhibits and briefs may be by

electronic means on the due date if transmission occurs before 4:00 pm and hard copies follow.

Oversize exhibits or photos or attachments may be served by hard copy only but must be sent by

overnight mail ifthe submission is sent electronically on the due date.

Testimony referred to in the above schedule is written testimony to be prepared in

accordance with Commission regulations:

§ 5.412. Written testimony.

(a) General. Use of written testimony in Commission proceedings is encouraged, especially in connection with the testimony of expert witnesses. Written direct testimony is required of expert witnesses testifying in rate cases.

(b) Use. The presiding officer may direct that expert testimony to be given upon direct examination be submitted as prepared written testimony. A reasonable period of time will be allowed to prepare written testimony.

(c) Rules regarding use. Written testimony is subject to the same rules of admissibility and cross-examination ofthe sponsoring witness as if it were presented orally in the usual manner.

(d) Cross-examination. Cross-examination of the witness presenting written testimony shall proceed at the hearing at which testimony is authenticated if service ofthe written testimony is made upon each party ofrecord at least 20 days prior to the hearing, unless the presiding officer for good cause otherwise directs. In a rate proceeding, the presiding officer or the Commission will establish the schedule for the filing and authentication of written testimony, and for cross-examination by other parties.

(e) Form. Written testimony must normally be prepared in question and answer form, include a statement ofthe qualifications ofthe witness and be accompanied by exhibits to which it relates. A party offering prepared written testimony shall insert line numbers in the left-hand margin on each page. A party should also use a logical and sequential numbering system to identify the written testimony of individual witnesses.

(f) Service. Written testimony shall be served upon the presiding officer and parties in the proceeding in accordance with the schedule established by this chapter. At the same time the testimony is served, a certificate of service for the testimony shall be filed with the Secretary.

(g) Copies. At the hearing at which the testimony is authenticated, counsel for the witness shall provide two copies ofthe testimony to the court reporter.

(h) Supersession. Subsections (a)—(g) supersede 1 Pa. Code § § 35.138, 35.150 and 35.166 (relating to expert witnesses; scope and conduct of examination; and prepared expert testimony).

52 Pa. Code §5.412.

Rebuttal testimony is limited to testimony which is responsive to the direct

testimony of one or more parties. Matters which should have been raised on direct.may not be

raised in rebuttal. Witnesses shall sponsor and authenticate written testimony at the evidentiary

hearings, after which other parties may cross examine witnesses. Testimony and exhibits shall

comply with the applicable rules of evidence in order to be relied upon by the presiding officer.

Please note that prepared written testimony is served upon other parties and

the presiding officer consistent with the due dates in the schedule but it is NOT filed with

the Commission's Secretary. Two copies ofthe prepared written testimony shall be handed

to the court reporter at fhe evidentiary hearing, and fhe court reporter shall deliver the

testimony to the Secretary after it is admitted into fhe evidentiary record.

Applicant shall coordinate the order of presentation of witnesses, create a cross-

examination grid and submit the two lists to the presiding officer no later than August 12, 2010.

Discovery Modifications

Applicant has asked for expedited treatment ofthis Application and modifications

to the Commission's discovery rules will be implemented in order to allow other parties to

conduct discovery and still allow an expeditious schedule. There was no opposition to the

modifications.

Issues

At the prehearing conference, the following list of issues was identified as

needing establishment or development:

1. Whether applicant has satisfied requirements, including fmancial fitness and definition of

public utility?

2. Exact authority sought by Applicant?

6

3. What is the nature of service territory?

4. Development of a list of items to be included in tariffs.

5. Commission jurisdiction over gathering systems, including siting.

6. Commission jurisdiction over compression plants siting, need for finding of need under

municipalities planning code exemption for public utilities.

7. What is "light-handed" regulation, and where is the authority for it?

This list is intended as a guide and is not meant to be limiting. Other relevant

issues may be raised in direct testimony.

Presiding Officer's Party E-Mail Contact List

The following is the list of contacts which were compiled at the prehearing

conference and checked with the parties:

Dan.delanev@klgates.com veraduergafgtvahoo.com bill@fischerbureau.com mdfiorentino(5),email.com TJSniscak@hmslegal.com kmoodv(a).eckertseamans.com brian.clarkfgjbipc.com brian.knipefgjbipc.com JMullinsfg.paoca.org iisom(5),postschell.com abakare(ajstate.pa.us ewitmer(a)saul.com

Changes in addresses, either electronic or postal mailing addresses, must be

reported to the presiding officer and other parties in order to ensure proper service. An updated

service list is attached to this Order.

Parties are reminded that this case is a formal adversarial proceeding before

the Commission, and the Commissions regulations regarding practice and procedure,

appearing at 52 Pa. Code Chapters 1, 3 and 5, apply. These regulations are available at

www. pacode.com.

THEREFORE,

IT IS ORDERED:

1. That the petitions to intervene filed by ETC Northeast Pipeline, Laurel

Mountain Midstream LLC, and MarkWest Liberty Midstream and Resources, LLC,

Pennsylvania Independent Oil & Gas Association, Superior Appalachian Pipeline, Inc. and DTE

Pipeline Company and Bluestone Pipeline Company of Pennsylvania are granted without

opposition.

2. That the following procedural schedule is adopted:

Laser Direct Testimony May 12, 2010 Direct testimony of other parties June 9,2010 Laser rebuttal testimony June 24, 2010 Rebuttal testimony of other patfies July 6,2010 Hearings July 14, 15 and 26, 2010

Includes oral rejoinder Main brief August 9, 2010 Reply brief August 23, 2010

3. That the Petition of MarkWest Midstream & Resources LLC to withdraw

its Motion for publication of an amended notice ofthe application is granted.

4. That due dates are in-hand, service of discovery requests, testimony,

exhibits and briefs may be by electronic means on the due date if transmission occurs before 4:00

pm and hard copies follow, unless otherwise noted in the litigation schedule. Oversize exhibits

or photos or attachments may be served by hard copy only but must be sent by overnight mail if

the submission is sent electronically on the due date.

5. Any document filed by a party must be served separately upon the

presiding officer. Service may be electronic on the due date at scolwell@state.pa.us. with a hard

copy to follow at: Administrative Law Judge Susan D. Colwell, Pa. PUC, P.O. Box 3265,

HarrisburgPA 1715-3265.

6. Discovery served after 4:00 pm shall be deemed to be served the following

business day. Ifa document subject to a three-day turn-around is due on a Monday, the due date

shall be deemed to be Tuesday.

7. That the Commission's regulations regarding discovery at 52 Pa. Code

§ 5.342(d) are modified for the purposes ofthis proceeding to provide that objections to

discovery are in lieu of answers, and not in addition to answers.

8. That discovery disputes may be resolved via telephone conference with

the presiding officer without need of a motion to compel, although the propounding party may

choose to file a formal motion to compel.

9. That the Commission's regulations regarding discovery at 52 Pa. Code

§ 5.342 are modified as follows:

a. Answers to written interrogatories shall be served in-hand within

ten (10) calendar days of service. Interrogatories served after 12 p.m. on a Friday will be

deemed served on the next business day.

b. Objections to interrogatories shall be communicated orally within

three (3) calendar days of service ofthe interrogatories; unresolved objections shall be

served to the ALJ in writing within five (5) days of service ofthe interrogatories.

c. Motions to dismiss objections and/or direct the answering of

interrogatories shall be filed within three (3) calendar days of service ofthe wriiten

objections.

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d. Answers to motions to dismiss objections and/or direct the

answering of interrogatories shall be filed within three (3) calendar days of service of

such motions.

e. Ruling over such motions shall be issued, if possible, within seven

(7) calendar days ofthe filing ofthe motion.

f. Responses to requests for document production, entry for

inspection, or other purposes must be served in-hand within ten (10) calendar days.

g. Request for admissions will be deemed admitted unless answered

within ten (10) calendar days or objected to within five (5) calendar days of service.

10. Parties are required to attempt to resolve discovery disputes among

themselves prior to seeking a resolution from the presiding officer.

11. Applicant shall coordinate the order of presentation of witnesses, create a

cross-examination grid and submit the two lists to the presiding officer no later than July 12,

2010.

12. Briefs shall comply with the Commission's regulations:

§ 5.501. Content and form of briefs.

(a) Briefs must contain the following: (1) A concise statement or counter-statement ofthe case. (2) Reference to the pages ofthe record or exhibits where the

evidence relied upon by the filing party appears. (3) An argument preceded by a summary. The party with the

burden of proof shall, in its main or initial brief, completely address, to the extent possible, every issue raised by the relief sought and the evidence adduced at hearing.

(4) A conclusion with requested relief.

10

(b) Briefs must also contain the following, if and as directed by the presiding officer:

(1) A statement ofthe questions involved. (2) Proposed findings of fact with references to transcript pages

or exhibits where evidence appears, together with proposed conclusions oflaw.

(3) Proposed ordering paragraphs specifically identifying the relief sought. (c) Exhibits should not be reproduced in the brief, but may, if

desired, be reproduced in an appendix to the brief. (d) Briefs of more than 20 pages must contain on their front

leaves a table of contents with page references and a table of citations, which may be prepared without pagination. (e) Briefs must be as concise as possible and, except for briefs in

rate cases, be limited to 60 pages in length, unless some other limitation is imposed or allowed by the presiding officer. The length of briefs in rate cases will be controlled by the presiding officer. (f) Subsections (a)—(e) supersede 1 Pa. Code § 35.192 (relating

to content and form of briefs).

§£§.5©2ii^liSgiHBd^ratt'3MB^b<riile&i the parties in accordance with § 1.59(b) and (c) (relating to number of copies to be served). (b) Number of copies. (1) Paper filing. An original and nine copies of a brief shall be

filed with the Commission under § 1.4 (relating to filing generally).

(2) Electronic filing. (i) When the brief, including attachments, is 250 pages or less

and does not exceed 5 megabytes, the filing user may file one electronic copy ofthe brief with the Commission and is not required to file a paper copy.

(ii) When the brief, including attachments, exceeds 250 pages but does not exceed 5 megabytes, the filing user may file one electronic copy ofthe brief and shall also file an original ofthe brief in paper form. The original shall be filed no later than 3 business days after the electronic filing is made. The filing date for the brief in paper form for purposes ofthis section will be determined in accordance with § 1.11(a)(1)—(3) (relating to date of filing).

(3) Voluminous briefs. When the brief, including attachments, exceeds 5 megabytes, in addition to filing the requisite number of hard copies in accordance with subsection (b)(1), a CD-ROM or DVD containing the brief and an index to the brief shall be filed with the Commission. (c) Filing of briefs in nonrate proceedings.

11

(1) Initial brief. An inilial brief shall be filed by the party with the burden of proof except as provided by agreement or by direction ofthe presiding officer.

(2) Response brief A party may file a response brief to the initial brief. (d) Filing of briefs in rate proceedings.

(1) Main brief. A main brief may be filed by a party except as provided by agreement or by direction ofthe presiding officer.

(2) Reply brief A party may file a reply brief to a main brief regardless of whether the party filed a main brief. (e) Filing of amicus curiae briefs. A person interested in the

issues involved in a Commission proceeding, although not a party, may, without applying for leave to do so, file amicus curiae briefs in regard to those issues. Unless otherwise ordered, amicus curiae briefs shall be filed and served in the manner and number required and within the time allowed by this section, absent good cause. (f) Deadlines. Initial briefs, main briefs, responsive briefs and

reply briefs shall be filed and served within the time fixed by the presiding officer. If no specific times are fixed, initial briefs or main briefs shall be filed and served within 20 days after the date of service of notice ofthe filing ofthe transcript and responsive briefs or reply briefs shall be filed within 40 days after date of service ofthe notice ofthe filing ofthe transcript. (g) Late-filed briefs. Briefs not filed and served on or before the

dates fixed therefore will not be accepted, except by special permission ofthe Commission or the presiding officer as permitted under § 1.15 (referring to extensions of time and continuances). (h) Supersession. Subsections (a)—(f) supersede 1 Pa. Code § § 35.191 and 35.193 (relating to proceedings in which briefs are to be filed; and filing and service of briefs). 52 Pa. Code §§5.501, 5.502

13. Note that Subsection (b)(3), above, permits the filing of a hard copy of a

brief up to three days after the electronic copy is filed. Service ofthe brief is required in-hand

to the presiding officer and parties on the due date listed on the schedule.

Dated: April 29. 2010 Susan D. Colwell Administrative Law Judge

12

Protest of Vera Scroggins

Filed February 26, 2010.

K&L GATES K&L Gates UP 17 Norlh Second Slreet, 18tti floor HarrisbuiS. PA 17101-1507

i 717.231,4500 www.iclgites.com

February 19,2010 Daniel P. Delaney D 717.231.4516 F 717.231.4501 dBn.delaney@ktgate3.com

Via Hand Delivery

James J. McNulty, Secretary Pennsylvania Public Utility Commission Commonwealth Keystone Bldg.. 2nd Floor 400 North Street Hamsburg. PA 17120

Re: Application of Laser Marcellus Gathering Company, LLC for Approval to Begin to Offer. Render, Fumish, or Supply Natural Gas Transporting or Conveying Service by Pipeline to the Public in Great Bend, Liberty, Franklin, Silver Lake and Forest Lake Townships, Susquehanna County, Pennsylvania, Dockei No. A-2010-2153371

Dear Secretary McNulty:

Enclosed please find for filing in the above-captioned matter ihree copies of a Proof of Publication of a Public Notice of the above-captioned pipeline application in the Susquehanna County Independent on January 27, 2010. Publication of notice of this application was directed by Secretarial Letter dated January 20, 2010 at this docket.

Very truly yours,

Daniel P. Delaney PA Attorney LD. 2395i Counsel for Laser Ityarcellus (fathering Company, LLC

Enclosures

c: Paul Doll I J . Berthelot. II

RECEIVED FEB 2 6 2010

PA PUBLIC UTIUTY COMMiSSION SEGRETARY'SBUREAU

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Dora Cox, being duly swom, says she is the designated agent ofthe Susquehanna County Independent, a weekly new&paper of general circulation, published at Montrose, PA., said county which was established io February, 1816, and that the affiant is not interested in the siibject matter ofthe notice of advertising, and that all oftbe allegations of the statement as lo lime, place and character are true and that a notice, where of the annexed is copy, was published in said paper on

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Ms. Scroggins' June 9 and July 6 E-mails

Stating She Would Not Be Filing Direct

Testimony or Testifying at the July 7

Public Input Hearings.

Page 1 of 1

Delaney, Daniel P.

From: Vera Scroggins [veraduerga@yahoo,conn]

Sent: Wednesday, June 09, 2010 10:17 PM

To: Thomas J. Sniscak; Adeolu Bakare; Andrew S. Tubbs; Brian J. Clark; Brian J. Knipe; Daniel Clearfield; Delaney, Daniel P.; Elizabeth U. Witmer; Bibikos, George A.; Honorable Susan D. Colwell; James A. Mullins; John H. Isom; Kevin J. Moody; Michael D. Fiorentino; Michael T. Killion; Tanya J. McCIoskey; biil@fischerbureau.com

Subject: Re: Application of Laser Marcellus Gathering Company, LLC (No. A-2010-2153371)

1 will not be giving testimony at this time.

Vera Scroggins 25 Maple St. Montrose, Pa. 18801 607 237 9685

07/12/2010

Page 1 of2

Delaney, Daniel P.

From: Vera Scroggins [veraduerga@yahoo,com]

Sent: Tuesday, July 06, 2010 10:36 AM

To: Delaney, Daniel P.; Colwell, Susan; Bibikos, George A,; J. Mullins; Bakare, Adeolu; K. Moody; T. Sniscak; B. Knipe; brian.clark@bipc.com; W. Fischer; J. Isom; M. Fiorentino; E. Witmer

Subject: Re: Amended scheduling order

Your Honor, I wili be attending both meetings tomorrow but wili not speak.

Vera Scroggins pro se 25 Maple St. Montrose, Pa. 18801 607 237 9685

From: "Delaney, Daniel P." <dan.de!aney@klgates.com> To: "Colwell, Susan" <scoiwell@state.pa.us>; "Bibikos, George A." <George.Bibikos@klgates.com>; J. Mullins <jmullins@paoca.org>; "Bakare, Adeolu" <abakare@state.pa.us>; K. Moody <kmoody@eckertseamans.com>; T. Sniscak <TJSniscak@hmslegal.com>; B. Knipe <brian.knipe@bipc.com>; "brian.clark@bipc.com" <brian.clark@bipc.com>; W. Fischer <bill@fischerbureau.com>; J. Isom <jisom@postschell.com>; V. Scroggins <veraduerga@yahoo.com>; M. Fiorentino <mdfiorentino@gmail.com>; E. Witmer <ewitmer@saul.com> Sent: Tue, July 6, 2010 9:44:09 AM Subject: RE: Amended scheduling order

J u d g e Co lwe l l ,

I w i l l be a t t end ing b o t h pub l i c i npu t hear ings t o m o r r o w .

Dan Delaney

Dan Delaney K&L Gates 17 North Second Street, 18th Floor Harrisburg, PA 17101-1507 (717)231-4516 (direct dial) (717)231-4500 (717)231-4501 (Fax) dan.delan6y@klgates-Com www.klqates.com

07/13/2010

Page 2 of2

From: Colwell, Susan [mailto:scolwell@state.pa.us] Sent : Monday, July 05, 2010 8:56 AM To : Delaney, Daniel P.; Bibikos, George A.; J. Mullins; Bakare, Adeolu; K. Moody; T. Sniscak; B. Knipe; brian.clark@bipc.com; W. Fischer; J. Isom; V. Scroggins; M. Fiorentino; E. Witmer Sub jec t : Amended scheduling order

Attached please find an electronic advance copy ofthe amended scheduling order signed today in this case, signed hard copy to follow.

Counsel only: PLEASE INDICATE BY NOON TOMORROW IF YOU WILL BE ATTENDING ONE OR BOTH OF THE PUBUC INPUT HEARINGS IN SUSQUEHANNA COUNTY SO THAT I CAN HAVE SPACE AND NAME TENTS PREPARED.

Pro se complainants are welcome to attend but will not be given a seat at counsel table.

Susan Colwell PAPUCOAU

A-2010-2153371

This electronic message contains information from the law firm of K & l Gates LLP. The contents may be privileged and confidential and are intended for the use ofthe Intended addressee(s) only. If you are not an intended addressee, note that any disclosure, copying, distribution, or use of the contents of this message is prohibited. If you have received this e-mail in error, please contact me at dan.delaney@kigates.com.

07/13/2010

Testimony of Earthjustice, Dated June 11, 2010,

Presented at the June 16, 2010 En Banc Hearing

in En Banc Docket 1-2010-2163461.

EARTHIUSTICE Becouse the eorth needs o good lawyer

ALASKA CALIFORNIA FLORIDA MID-PACIF IC N O R I H E A S T NORTHERN ROCKIES

NORTHWEST ROCK? M O U N T A I N WASHINGTON, DC INTERNATIONAL

June 11, 2010

Via E-Filing

Rosemary Chiavetta, Secretary

Pennsylvania Public Utility Commission Posf Office Box 3265

Harrisburg, PA 17105

Re: En Banc Hearing of the Pennsylvania Public Utility Commission on Jurisdictional Issues Related to Marcellus Shale Gas Development, Docket No. 1-2010-2163461

Dear Ms. Chiavetta:

On behalf of the undersigned organizations, Earthjustice thanks the Pennsylvania Utility Commission (the 'TUC" or the "Commission") for the opportunity to submit this testimony for inclusion in the record of the June 16, 2010, en banc hearing on PUC jurisdictional issues related to Marcellus Shale gas development. In our view, the economic promise of the Marcellus Shale can be realized only if development is pursued responsibly, with adequate regulatory protections for the public and the full range of public utilities within PUC jurisdiction. We are grateful that the Commission is taking the time now—before construction of potentially thousands of miles of gas pipelines—to examine how intensive development in the Marcellus Shale will affect core PUC functions.

In recent years, shale gas exploration has grown exponentially both nationally and in Pennsylvania. On the national level, the U.S. Department of Energy expects such production to increase from 1.2 trillion cubic feet ("tcf") in 2007 to 4.2 tcf by 2030.1 In Pennsylvania, economical gas production from horizontally drilled and hydraulically fractured gas wells in the Marcellus Shale began in 2005.2 The Pennsylvania Department of Environmental Protection ("DEP") reports that drilling increased by

1 Energy Information Administration, U.S. Department of Energy, Annual Energy Outlook 2009 77,

available at http://www.eia.doe.gov/oiaf/archive/aeo09/index.html. 2 National Energy Technology Laboratory, Office of Fossil Energy, U.S. Department of Energy, Modern

Shale Gas Development in the United States: A Primer 21 (2009), available at http://www.dep.state.pa.us/

dep/deputate/minres/oilgas/US_Dept_Energy_Report_Shale_Gas_Primer_2009,pdf.

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nearly 400 percent between 2008 and 2009, and at the current rate, new drilling is on target to surpass 1,000 wells in 2010.3

The thousands of Marcellus Shale gas wells that industry anticipates drilling every year do not function in isolation from their surrounding communities or other public utilities. As PUC Chair James H. Cawley recognized at the Commission's April 22 en banc hearing, lack of adequate environmental regulation of gas wastewater disposal in Pennsylvania already has caused water quality violations that have adversely affected water utilities under PUC jurisdiction as well as sewage treatment plants.4 Moreover, every producing wellsite requires the use of an extensive system of pipelines to gather the gas from the well, to transmit the gas to Pennsylvania markets, and to distribute the gas to the consumer. When production begins at a new wellsite, the gas industry must excavate previously undisturbed land for construction of gathering lines, and increasing development is generating incentives for the construction of new transmission lines as well. The new pipeline construction, and the associated new road construction, increase the risk of erosion and sedimentation that will impair water utility service or increase its operating expenses. Gas development also may increase safety risks from excavation of unregulated gathering lines, under-regulated leaks from pipelines in populated areas, and vehicular accidents involving inadequately insured heavy trucks. We discuss each of these issues in this testimony.

To ensure that any economic benefits of the gas rush do not come at the expense of safe and reliable utility service at reasonable rates, the PUC must implement a regulatory structure that keeps pace with industrial development. In doing so, the Commission should recognize that such development will affect core PUC functions beyond those related only to gas pipelines. We therefore respectfully urge the Commission to take a comprehensive view of PUC jurisdictional issues and to implement all measures necessary to safeguard the public and public utilities, especially regulated water utilities, from inadequately controlled gas exploration and production.

3 See Pennsylvania Department of Environmental Protection, Maps of Permits Issued and WeJIs Drilled,

http://www.dep.state.pa.us/dep/deputate/minres/oiSgas/2010PermitDrilledmaps.htm (follow the links to

"Wells Drilled in 2008," "Wells Drilled in 2009," and "Marcellus Permits Issued and Wells Drilled

January - May 2010") [hereinafter "Maps"] (DEP reports that 195 wells were drilled in the Marcellus

Shale in 2008 compared with 768 wells in 2009, DEP also reports that 564 new wells were drilled in the

Marcellus Shale in the first five months of 2010 alone.). 4 James H. Caw}ey, Chairman, Pennsylvania Public Utility Commission, Remarks at Marcellus Sha}e.£«

Banc Hearing on PUC Jurisdictional Issues, Docket No. 1-2010-2163461 (Apr. 22; 2010), audio available at

http://www.puc.state,pa.us/naturalgas/naturalgas_marcellus_Shale.aspx [hereinafter "April 22 Remarks

of PUC Chair Cawley"].

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A broad vision ofthe Commission's protective mandate would not require PUC ratemaking for gas producers or pipeline companies that do not seek public utility status, but it would encourage the industry as a whole to internalize the costs of its operations rather than shifting them to Pennsylvania's ratepayers and taxpayers.

I. The Commission Should Adopt Additional Public Safety Regulations and Seek Legislative Authority to Regulate Gas Pipelines and Facilities That Are Essential to Public Utility Services.

Because the Commission's questions to invited witnesses focus heavily on gas pipeline operations and applicable PUC standards, we begin our testimony with a discussion of pipeline safety issues. The Pipeline and Hazardous Materials Safety Administration ("PHMSA") of the United States Department of Transportation has promulgated minimum safety standards for the design, installation, inspection, emergency plans and procedures, testing, construction, extension, operation, replacement, and maintenance of pipeline facilities.5 These regulations govern most gathering lines, transmission lines, and service lines in more populated Class 2, 3, and 4 locations,6 but PHMSA does not regulate gathering lines in Class 1 locations—areas where fewer than ten buildings intended for human occupancy are located within 220 yards of either side of a continuous mile-length of pipeline.7 States may promulgate rules governing intrastate pipelines to the extent they incorporate the minimum federal standards,8 and the PUC administers Pennsylvania's gas safety program in compliance with PHMSA requirements.9

Pennsylvania currently does not regulate gathering lines laid in Class 1 locations, even though PHMSA has acknowledged that "many of the Marcellus related gathering lines are and will be in Class 1" areas.10 Moreover, "PHMSA anticipates that most of the pipeline facilities associated with the Marcellus development will fall within the Type A

s 49 C.F.R. Parts 190-99 (2010).

^ Id. §192.5. 7 Id. § 192.5(b)(l)(ii) (defining Class 1 locations); id. § 192.8 (excluding onshore gathering lines from

regulation when they are in Class 1 locations).

s See 49 U.S.C §60105 (2010). 9 Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, State

Pipeline Safety Programs - CY 2010 (2010), http://www.phmsa.dot.gov/pipeline/state-programs (follow

"State Pipeline Safety - CY 2008" hyperlink under heading "Legislative Authority"), 10 Statement of Jeffrey D. Wiese, PHMSA, 2 (Apr. 15, 2010), for inclusion in record of PUC En Banc

Hearing on Marcellus Shale Jurisdictional Issues, Docket No. 1-2010-2163461 (Apr, 22, 2010).

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classification."11 Type A pipelines are the more highly pressured of two categories of pipelines and are subject to more stringent safety standards.12

Under federal and Pennsylvania law, the gas industry is not required to mark gathering lines in Class 1 locations, even if they are higher-risk Type A pipelines.13 As a result, excavations in Class 1 areas with producing wells present risks of damage to the lines and injuries to people and property in the vicinity. PHMSA has identified excavation as the most significant source of serious pipeline incidents over the past 20 years.14 Because gas wells may be drilled as close as 200 feet to residences in Pennsylvania, without consent of the owner,15 the risks to rural residents and their homes must be taken seriously. To ensure that the Commonwealth's citizens are informed about and protected from the dangers presented by buried pipelines, the Commission should seek authority to regulate gathering lines in Class 1 locations, including by requiring their participation in the One-Call system.

Experience in other states with intensive gas development, including shale gas development, suggests that standards more protective than those required under federal law may be needed for gathering lines in Class 1 locations and Type B gathering and production lines in populated areas. Colorado and Texas have promulgated such public safety regulations.16 We respectfully urge PUC to consider the Colorado and Texas regulations as examples of how it might act to maintain public safety without impeding gas development. To the extent necessary, we urge the Commission to seek the legislative authority it needs to regulate gas pipeline owners or operators that do not qualify as public utilities, when the pipelines are links in the public utility service chain.

A. Colorado

In October 2008, the Colorado Public Utilities Commission adopted regulations that go beyond requirements of 49 C.F.R. Part 192 to address the safety of gathering

u ] d .

v 49 C.F.R. §§192,8,192.9. 13 See id. §§ 3 92.8(b), 192.9,192.707. 14 Pipeline and Hazardous Materials Safety Administration, PHMSA Pipeline Safety Program,

Stakeholder Communications, Damage Prevention, http://primis.phmsa.dot.gov/comm/

DamagePrevention.htm (last visited June 8, 2010). 15 58 Pa. Stat. Ann. § 601.205 (2010). 16 See 4 Colo. Code Regs. § 723-4:4952(c) (2010); 16 Tex. Admin. Code §§ 8.1, 8.101 (2010).

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lines in Class 1 locations.17 The rules require that operators of gathering lines in Class 1 locations: (1) telephonically report emergency repairs and gas leaks and promptly repair and document any hazardous leakage or conditions that could lead to a hazardous facility order, (2) notify authorities if any such line is located in a public road or railroad right-of-way, and (3) install and maintain Class 1 gathering line markers at crossings of public roads, highways, and railroads.18 The Colorado Public Utilities Commission adopted these regulations upon finding that the amended regulations were "necessary to protect fhe public health, safety, and welfare."19 DCP Midstream, one of the nation's largest natural gas gatherers and processors, submitted comments on the proposed rulemaking stating that it did not find the additional requirements overly burdensome and in fact had already installed line markers on all gathering lines.20 In addition, Colorado added requirements for leakage surveys on Type B gathering lines in Class 2, 3, and 4 locations.21

B. Texas

More recently, in February 2009, the Railroad Commission of Texas ("RCT") adopted amendments to its regulations establishing more comprehensive standards for production and flow lines connecting to gathering lines, including requirements that such pipelines be regulated for safety, design, construction, pressure, testing, and emergency response.22 The RCT noted that because gas exploration and production increasingly were taking place in urban areas, standards were needed for production lines in populated areas where only gathering lines were regulated.23 Specifically, the RCT sought to provide for enhanced safety in urban areas, such as Fort Worth, the site of intensive Barnett Shale development, by ensuring that all pipelines located in heavily

" 4 Colo. Code Regs. § 723-4:4952(c).

is id. 19 Recommended Decision of Administrative Law Judge Dale E. Isley Adopting Rules, No. 08R-226GPS,

slip op. at 3 (Colo. P.U.C Aug. 25, 2008). 20 DCP Midstream, Comments to Proposed Rules Regulating Gas Utilities and Pipeline Operators,

Colorado Public Utilities Commission Docket No. 08R-226GPS, at 2 (Jul. 31, 2008), available at

https://www.dora.state.co.us/pls/efi/EFI_Search_ULSearch (search for Documents in Proceeding Number

08R-226GPS, then follow "Gas Pipeline Safety Rulemaking" hyperlink).

2i 4 Colo. Code Regs. § 723-4:4952(b). 22 See 16 Tex, Admin. Code §§ 8.1. 23 Press Release, Texas Railroad Commission, Commissioners: "New Pipeline Safety Rules Approved

Today," Requirements Place Texas at the Forefront of Pipehne Safety Initiatives Nationwide (Feb. 10,

2009), http://www.rrc.state.tx.us/pressreleases/2009/021009a.php, (quoting Railroad Commission of Texas

Chairman Victor Carilio).

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populated areas "continue to be under the watchful eye of the state's regulatory agency."24

Specifically, the amended RCT standards regulate Type A and Type B production pipelines in Class 2, 3, and 4 areas in the same manner that Type A and Type B gathering pipelines already were regulated.25 The RCT was the first state agency in the nation to regulate all pipelines, including production and flow lines, in heavily populated areas.26 The RCT's objective in adopting these amended regulations was to regulate optimally the pipelines likely to pose the greatest risk.27

Additionally, in October 2008, the RCT adopted rules that increase the frequency by which operators of pipelines in Class 2, 3, and 4 locations must inspect leaks and shorten natural gas leak repair time frames.28 Grade 1 leaks continue to require immediate repair, and the RCT amended its rules to require that Grade 2 leaks be reevaluated monthly and repaired within six months, and Grade 3 leaks be reevaluated within 15 months and repaired within thirty-six months.29 In February 2009, at the same time that the amended regulations governing production lines were issued, the RCT adopted a rule requiring operators to submit all leak reports online.30

C. State-of-the-Art Pipeline Safety

The Commission wisely convened these hearings before Marcellus Shale gas development fully ramps up in Pennsylvania to ensure that PUC regulations adequately protect the public as drilling intensifies. To meet that goal, the Commission needs the authority to regulate gas pipelines owned or operated by persons or corporations that do not qualify as public utilities and do not seek that status, especially gas producers laying gathering lines in Class 1 locations. Those entities should not be compelled to seek certificates of public convenience, but the Commission should seek legislative authorization to regulate the safety of all gas pipelines directly or indirectly linking to the delivery system operated by public utilities transmitting and distributing the gas. The Commission also should exercise the authority it already has to improve safety regulations governing public utilities that operate gas pipelines in Class 2, 3, and

24 Jd . 3516 Tex. Admin. Code § 8.1(a)(1)(B). 26 See id. 27 34 Tex. Reg, 1417 (Feb. 27, 2009). 2816 Tex. Admin. Code § 8.206.

^]d. §8.207.

M W.§ 8.210(e).

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4 locations. The regulations adopted in Colorado and Texas should provide a baseline for new rules, but the Commission should not hesitate to adopt additional regulations dictated by Pennsylvania's specific needs, which should be investigated fully in the public rulemaking process.

II. The Commission Should Consider the Impacts of Marcellus Shale Gas

Development on Public Utilities Other Than Gas Utilities.

The Commission is charged with establishing a regulatory framework for all public utilities to ensure that they provide "adequate, efficient, safe, and reasonable service and facilities."31 To fulfill that mandate, the Commission must consider how Marcellus Shale gas development will affect not only public utilities transmitting or distributing gas but also public utilities furnishing water or property transportation services. We address each of these potential impacts in turn below.

A. The Gas Industry, Not Pennsylvania's Water Utility Ratepayers, Should Finance Any Additional Operaling or Maintenance Costs That the Industry's Activities Impose on Water Utilities.

Although the Commission does not regulate water quality, it does have jurisdiction over companies that receive compensation for furnishing water to business and the public. Industrial gas development, including both well drilling and waste disposal, already has contaminated Pennsylvania's water supplies. Construction activities associated with such development, including construction of gas pipelines under PUC jurisdiction, inevitably will cause significant land disturbance, which in turn potentially increases erosion and sedimentation rates into the streams and rivers from which many water utilities draw their supplies. If the PUC is to keep water costs down for consumers, it cannot ignore the impact on water utilities of water pollution caused by gas development in the Marcellus Shale.

Gas wastewater and methane leaked from gas wells repeatedly have caused water pollution in Pennsylvania.32 In 2008, DEP issued a drinking water advisory for

3i 66 Pa. Stat. Ann. §1501. 32 See Jad Mouawad & Clifford Krauss, Dark Side of a Natural Gas Boom, N.Y. Times, Dec. 9, 2009, at Bl;

see also Division of Mineral Resources, New York Department of Environmental Conservation, Draft

Supplemental Generic Environmental Impact Statement on the Oil, Gas, and Solution Mining Regulatory

Program 5-99, 5-103 - 5-108 (2009), available at ftp://ftp.dec.state,ny.us/dmn/download/OGdSGEISFull.pdf

[hereinafter "DSGEIS"] (Each well in the Marcellus Shale produces approximately 216,000 to 2.7 million

gallons of wastewater, which often contains elevated levels of heavy metals, organic compounds, total

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325,000 Pittsburgh customers of public water supplies, after elevated levels of Total Dissolved Solids ("TDS") in Marcellus Shale gas wastewater caused the Monongahela River to violate water quality standards.33 As a result, at least one water company incurred costs educating its customers about the problem.34 Methane released as a result of gas drilling has contaminated drinking water wells in at least seven Pennsylvania counties since 2004, and, in one case, methane was detected in water sampled over 15 square miles.35 In April 2010, after Cabot Oil & Gas failed to fix defective well casings, DEP fined the company $240,000 for causing water contamination in 14 homes.36 Cabot also was responsible for spilling 8,500 gallons of hydraulic fracturing fluid into Stevens Creek in Susquehanna County in 2009.37

The risks of surface water contamination from gas wastes or spills only will increase as development intensifies throughout the Marcellus Shale region, and it may be just a matter of time before water utilities drawing supplies from groundwater suffer incidents of methane intrusion. PUC regulatory mechanisms are needed to ensure that water utilities adversely affected by such contamination are fully reimbursed by the gas development companies and that such costs are not unfairly shifted to water utility customers.

High TDS levels in Marcellus Shale wastewater impose additional treatment requirements on water utilities with intakes on TDS-contaminated waterways. At least one water utility has suggested that the Commission regulate facilities that accept the

dissolved solids, normally occurring radioactive materials, and a myriad of chemicals incorporated into

hydraulic fracturing fluids.). 33 News Release, DEP, Test Results on Monongahela River Show No Major Threat to Human Health from

High Level Metal Contamination (Oct. 24, 2008), http://www.portaLstate,pa.us/portal/server.pt/

community/newsroom/14287?id=2051&typeid=l; Joaquin Sapien, What Can Be Done with Wastewater?

Rapid Expansion of Gas Drilling Has Led to Problems with Disposal, Contamination, Pittsburgh Post-Gazette,

Oct. 4, 2009, at A3, available at http://www.post-gazette.com/pg/09277/1002919-113.stm. 34 See, e.g.. Brochure, Pennsylvania American Water, Learning About Totai Dissolved Solids (Dec. 2009),

http://www.amwater.com/files/PA%20-%20TDS%20-%20December%202009.pdf. 35 Abrahm Lustgarten, Water Problems from Drilling Are More Frequent Than PA Officials Said, ProPublica,

July 31, 2009, http://www.propublica.org/feature/water-problems-from-drilling-are-more-frequent-than-

offidals-said-731. 36 John Hurdle, Update 2 - Cabot Oil to Plug 3 Marcellus Gas Wells, Pay Fine, Reuters.com, Apr. 15, 2010,

http://www.reuters.com/article/idUSSGE63E0K620100415. 37 Steve McConnell, Fracturing Fluids Spill into Susquehanna County Stream, Wayne Independent, Sept. 17,

2009, http://www.wayneindependent.com/archive/x576510049/Fracturing-fluids-spili-into-Susquehanna-

County-stream.

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residuals from such treatment for disposal.38 PUC-regulated sewage treatment plants that upgrade their systems in order to accept Marcellus Shale wastewater also may welcome regulation of such disposal facilities.

Leaks, spills, and fluid waste associated with gas development are not the only sources of contamination potentially threatening water utility supplies. Construction activities associated with Marcellus Shale development, including construction undertaken by PUC-regulated gas utilities, also carry risks of contaminating water supplies. For example, land clearance and excavations required for new pipelines or pipeline maintenance or replacement create "an increased potential for accelerated erosion and sediment pollution."39 Although DEP requires that the gas industry implement best management practices ("BMPs") for erosion and sediment control when pipeline and other construction disturbs more than five acres, there is no oversight of construction sites that disturb smaller areas.40 Moreover, DEP does not regulate the potential erosion and sedimentation from construction on numerous sites of fewer than five acres each, which cumulatively may adversely impact the quality of water utility supplies.

In addition to the construction, maintenance, or replacement of pipelines, the construction of new or upgraded access roads capable of supporting the weight of heavy trucks used to transport gas industry materials and equipment will increase erosion and sedimentation potential.41 The New York State Department of Environmental Conservation ("NYSDEC") estimated that access roads necessary to construct pipehnes within the New York Marcellus Shale region will be wider than those needed for well construction, which are estimated to be 150-3,000 feet long and 20-40 feet wide.42 Constructing roads of this size throughout the Pennsylvania Marcellus Shale region ultimately will require the removal of thousands of acres of topsoil, which threatens major erosion and sedimentation increases in the surrounding

38 Presentation of Kathy L. Pape, Pennsylvania American Water, at Public Utility Bar Bench Conference

(May 11, 2020) (on file with Earthjustice). 39 DEP, Comment and Response Document, Erosion and Sediment Control and Stormwater Management

for Oil and Gas Exploration, Production, Processing, Treatment Operations or Transmission Facilities,

5500-PM-OG0005 4 (2008), http://www.elibrary.dep.state.pa.us/dsweb/Get/Document-

67458/05%20Comment%20and%20Response%2003%2028%2008.pdf (recognizing the potential impact of

"pipelines for the gathering and transport of natural gas").

41 See DSGEIS, supra note 32, at 5-6. 42 See id.

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areas. Such increases also are likely when local roads "are significantly damaged or completely destroyed," by "overweight and oversize vehicles."43

Finally, the construction of thousands of acres of access roads will require increased truck traffic to transport the excavation and paving materials and equipment. Truck traffic and transportation of construction materials contributes "large amounts of sediment and silt to runoff waters, which can deteriorate water quality."44 Heavy metals, oils, and debris from construction traffic and spillage associated with construction also can be absorbed by soil and carried by runoff water to surface and ground waters.45

Water utilities must treat water contaminated by sedimentation with costly chemicals and coagulants prior to distributing it to consumers.46 All water utilities, including those with sophisticated equipment, must purchase these chemicals and coagulants to remove sedimentation, increasing the total cost of water production.47

One study based on 430 large utilities throughout the United States estimated that the costs of treating turbidity and sedimentation, including operating and maintenance costs, were $113.12 per million gallons of water.48 The utility also will incur increased costs for disposal of the residuals removed from the contaminated water.49

The Commission sets fhe water rates that utilities may charge their consumers in a manner that reflects all "prudently incurred costs of providing service"50 Increased costs associated with treating contamination, including increased sedimentation, from pipeline and other gas development construction activities doubtlessly qualify as "prudently incurred costs." Consequently, when such costs are incurred, the

43 Testimony of David M. Sanko, Pennsylvania State Association of Township Supervisors, at 1, for

inclusion in record of PUC En Banc Hearing on Marcellus Shale Jurisdictional Issues, Docket No. 1-2010-

2163461 (Apr. 22, 2010). 44 U.S. Environmental Protection Agency, Erosion, Sediment and Runoff Control for Roads and Highways

(Dec. 1995), http://www.epa.gov/nps/education/runoff.html (last updated Jan. 13, 2010).

«Id. 46 Effluent Limitations Guidelines and Standards for the Construction and Development Point Source

Category, 74 Fed. Reg. 62,996, 62,998 (Dec. 1, 2009). 47 David Dearmont, Bruce A. McCarl & Deborah A. Tolman, Costs of Water Treatment Due to Diminished

Water Quality: A Case Study in Texas, 34 Water Resources Research 849, 852 (1998).

«W. 49 See Presentation of Kathy L. Pape, supra note 38. 50 PUC, Water: We All Always Need It 2 (2005), https://www.puc.state.pa.us/general/consumer_ed/

pdf/waterbrochure,pdf.

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Commission may be asked to increase rates that water utilities may charge their customers.

Permitting a rate increase when Marcellus Shale gas development activities contaminate water utility supplies would unfairly shift costs from the industry to the ratepayers. The Commission should consider regulatory mechanisms, such as bonds or other financial guarantees tied to the extent of potentially polluting activity, that will encourage the industry collectively to minimize potential water contamination and will compel the industry fully to internalize the costs of development activities that adversely affect water utilities. Such payments would not be duplicative of DEP penalties assessed for environmental harms outside PUC jurisdiction.

B. The Commission Should Require Use of Certificated Common Carriers for Transportation of Gas Development Materials and Equijpment.

Gas development in the Marcellus Shale creates an enormous amount of truck traffic. The NYSDEC estimated that a single well in the Marcellus Shale will require between 890 and 1,340 truck trips throughout its life cycle and ten truck trips to complete the pipeline construction necessary for each well.51 Given the thousands of wells that may be drilled in the Marcellus Shale in Pennsylvania every year, the process of gas pipeline construction alone will add tens of thousands of truck trips to Pennsylvania's roadways. Moreover, the trucks transporting industry materials and equipment, including pipeline equipment, are heavy tankers and flatbed trucks, which place a severe burden on Pennsylvania's current transportation infrastructure.

The significantly increased heavy truck traffic necessitated by gas development creates serious safety hazards for other motorists and residents in the Marcellus Shale region of Pennsylvania. Many Marcellus Shale wells are located in rural areas without paved roads or other areas without roads fit to handle heavy trucking activities. Increased truck traffic in these areas poses significant risks of accidents on these underdeveloped roadways. These risks are augmented further by the fact that many of these trucks operate in violation of PUC's regulations designed to maintain safe roadways.52

51 See DSGEIS, supra note 32, at 6-138 to 6-139. 52 See PUC, Regulation of Motor Common Carriers of Property, No. P-00940884,1995 WL 945467, at *6

{Dec. 20,1994) [hereinafter "Final Decision"].

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Trucking companies that transport materials to and from Marcellus Shale well and pipeline construction are deemed "common carriers" subject to PUC's jurisdiction.53 All common carriers employed by the gas industry must obtain certificates of public convenience, which ensure that they maintain adequate insurance and comply with the Commission's safety regulations.24 To obtain a certificate of public convenience, every trucking company must submit an Application for Motor Common Carrier of Property and comply with all associated procedural requirements.55 These applications are not noticed in the Pennsylvania Bulletin, and existing carriers and members of the public are not permitted to protest motor carrier of property applications.56 The Commission may issue a certificate of public convenience to the applicant once it determines independently that all safety issues have been addressed and once it has received proof of insurance from the applicant.57 Trucking companies operating unlawfully without certificates of public convenience are subject to enforcement proceedings and fines of $1,000 per day for noncompliance with PUC's regulations.58

At the Commission's April 22 en banc hearing, the PUC Chair expressed concern that the gas industry is using trucks that have not obtained certificates of public convenience.59 Because issuances of certificates for motor carriers of property are not noticed in the Pennsylvania Bulletin, it is prohibitively difficult for existing carriers and members of the public to determine whether any given trucking company employed by the gas industry is operating lawfully pursuant to a certificate. Given that over 1,500 wells, each requiring over hundreds to thousands of truck trips, have been drilled in the Marcellus Shale since January 2008, a large number of trucks may be operating without certificates in defiance of PUC safety requirements.60

53 See 52 Pa. Code §§ 37.201, -.202. 54 Final Decision, supra note 52, at *6,10; see also 49 U.S.C § 41713(b) (1997) (preempting PUC from

regulating the rates, routes, and services of common carriers but allowing PUC to regulate common

carriers in matters of safety and insurance). 55 Final Decision, supra note 52, at *9-10. 56 28 Pa. Bull. 2143 (May 9,1998); 52 Pa. Code. § 5.51(b). 57 Final Decision, supra note 52, at *10; PUC, Fact Sheet for Pennsylvania's Regulation of Intrastate

Carriers of Property and Household Goods 1 (rev. Apr. 2009), at

http://www.puc.state.pa.us/general/onlineforms/pdf/T&S_Property _FSheet.pdf. 58 52 Pa. Code § 37.291(a); 66 Pa. Stat. Ann. § 3301(a)-(b). 59 April 22 Remarks of PUC Chair Cawley, supra note 4. 60 See Maps, supra note 3 (indicating that 195 wells were drilled in the Marcellus Shale in 2008, 768 wells

were drilled in the Marcellus Shale in 2009, and 564 wells were drilled in the Marcellus Shale between

January and May 2010); DSGEIS, supra note 32, at 6-138 - 6-139 (indicating that an estimated 890 to 1,340

truck trips are required per well for natural gas development in the Marcellus Shale in New York).

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Further compounding PUC's enforcement challenges is the fact that there is a limited number of officers employed by the Bureau of Transportation and Safety to enforce PUC's regulations. As of June 8, 2010, the Bureau of Transportation and Safety employed a total of 26 officers and three supervisors charged with enforcement ofits requirements and regulations throughout the entire state of Pennsylvania.61 These enforcement officers have limited resources through which to determine whether motor carriers are operating lawfully, and they generally rely on tips from certificated carriers to identify carriers operating without a certificate.62

Allowing the gas industry to use uncertificated motor carriers is contrary to the policy of the Public Utility Code.63 The Commission must make additional efforts to ensure that every truck transporting materials to and from well and pipeline construction sites is safe and fully insured. At present, hundreds to thousands of trucks may be operating without certificates of public convenience, and this lack of certification presents a serious threat to public safety. At the very least, the Commission should employ additional enforcement officers and create stronger policies for enforcement of its regulations, and those costs should be borne by the industry. The Commission also should require that any gas utility under its jurisdiction, including pipeline companies, certify that it uses certificated trucks for property transportation.

III. The Commission Should Oversee Siting of Gathering Lines and Other Intrastate Gas Pipelines.

As the foregoing analysis demonstrates, the construction of pipelines carries significant risks for public safety, consumer protection, and the economic interests of PUC-regulated public utilities, including water utilities and common carriers by motor vehicle. With every additional mile of pipeline construction, these risks necessarily increase. Moreover, the location of pipelines is not neutral with respect to any of these jurisdictional concerns. Pipelines constructed near occupied buildings create dangers not presented by those located reasonable distances from people and property.

61 Telephone conversation with Wendy Yoag, PUC Bureau of Transportation & Safety, Compliance Office

(June 8, 2010). Ms- Yoag indicated that the Pittsburgh & Altoona District Office of the PUC Bureau of

Transportation and Safety has eight officers and one supervisor, the Philadelphia DistricfOffice has five

officers and one supervisor, and the Harrisburg and Scranton District Offices share 13 officers and one

supervisor between the two offices. 62 See id. 63 See 66 Pa. Stat. Ann. § 1501 {stating that "[e]very pubiic utility shall furnish and maintain adequate,

efficient, safe, and reasonable service and facilities").

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Pipelines located near water supplies, or run through forests that protect water supplies, threaten more contamination than those affording generous buffers or avoiding unnecessary land and topsoil clearance. The Commission therefore cannot fulfill its statutory mandate if it does not oversee the siting of pipelines within the Commonwealth.

Failure to oversee the siting of pipelines virtually guarantees that both gathering lines and transmission lines will proliferate dangerously. The risk is evident from the comments of Bluestone Pipeline Company of Pennsylvania, for example, which expressly acknowledges that "its proposed service territory will likely overlap with those of one or more providers of similar services" but opposes the creation of exclusive certificated service territories.64 Exclusive service territories may not be ideal, but there must be some coordination mechanism for pipeline construction that prevents competitors from building redundant and unnecessarily destructive lines. Without PUC oversight of pipeline siting, water utilities and their customers will be placed at unnecessary risk because there will be no means to prevent gratuitous land clearance or to direct lines away from water sources.

At the very least, PUC siting authority should be exercised over gas utiiities to protect public safety and water utility ratepayers. Any certificate of public convenience issued to an entity that may construct pipelines of any sort should include a condition that, before construction commences, the utility obtain PUC approval certifying the need for both the extent and specific location of any proposed pipeline, and no approval should be granted without at least 30 days' notice, directly to affected landowners and published in the Pennsylvania Bulletin, and a period for public comment and hearing. Similarly, no gas utility seeking to appropriate land for pipeline construction should be permitted to initiate eminent domain proceedings against a landowner until the Commission certifies that need, and no certification should be granted without at least 30 days' notice, directly to the landowner and published in the Pennsylvania Bulletin, and a period for public comment and hearing.

Some companies providing gathering services for gas producers have urged the Commission to undertake "streamlined" regulation of such services, arguing that the providers should receive the benefits of public utility status "but should not be

64 Comments of DTE Pipeline Company and Bluestone Pipeline Company of Pennsylvania, LLC, at 3

(Apr. 16, 2010), for inclusion in the record of Marcellus Shale En Banc Hearing on PUC Jurisdictional

Issues, Docket No. 1-2010-2163461 (Apr. 22, 2010) [hereinafter "Bluestone Comments"].

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burdened by full-scale economic regulation."65 For example, ETC Northeast Pipeline seeks the eminent domain power of public utilities, while objecting to any PUC requirements with respect to affiliated interest filings, security certificates, annual reports, rates, service, terms and conditions of service, or pipeline siting.66 Earthjustice and the undersigned organizations strongly object to the extension of eminent domain power to any entity not fully regulated as a public utility and emphasize the need for PUC oversight of pipeline siting, even when construction is undertaken by a fully regulated utility. Moreover, the Commission should not consider developing any special regulatory package to accommodate gathering service provider requests for "streamlined" regulation, even without granting eminent domain power, unless the package includes regulation of pipeline siting.

We recognize that pipeline siting potentially raises jurisdictional issues for both the Commission and DEP. We urge the Commission to consider creation of a joint task force to investigate options and make recommendations for a planning process and siting regulations that address the mission and concerns of both agencies. Ideally, the task force would develop public participation procedures that would offer it the benefit of input from scientific experts, local government, industry, landowners, environmental and consumer groups, and other concerned citizens.

Conclusion

At the April 22 en banc hearing. Commissioners repeatedly disallowed any interest in building a regulatory empire, but the Commission should not shrink from exercising its rightful authority, when its mission so demands. That broad mission, stated succinctly on the PUC website, provides:

The Pennsylvania Public Utility Commission balances the needs of consumers and utilities to ensure safe and reliable utility service at reasonable rates; protect the public interest; educate consumers to make independent and informed utility choices; further economic development;

65 Comments of ETC Northeast Pipeline, LLC , at 4, 6 (Apr. 16, 2010) [hereinafter "ETC Comments"], for

inclusion in the record of Marcellus Shale En Banc Hearing on PUC Jurisdictional Issues, Docket No. I-

2010-2363461 (Apr. 22, 2010); see ako Bluestone Comments, supra note 64, at 4-7. 66 ETC Comments, supra note 65, at 4.

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and foster new technologies and competitive markets in an environmentally sound manner." 67

The PUC mission statement affirms the Commission's legislative charge and institutional commitment to. act in the public interest and confirms that, although DEP has primary jurisdiction over water quality and other environmental regulation, the Commission cannot fulfill its own mandate without factoring those considerations into its regulation of public utilities. Indeed, rather than excluding those issues from its deliberative calculus, the PUC previously has insisted that it "takes its environmental obligations seriously."68 Taking its environmental obligations seriously in the context of Marcellus Shale gas development requires that the Commission seek legislative authorization to regulate all intrastate gas pipelines and exercise that authority over pipeline siting. Vigilant oversight of pipeline siting will protect water utilities and ratepayers from water quality degradation, while also enhancing public safety, without impeding economic development in the Commonwealth.

Respectfully submitted,

Deborah Goldberg Managing Attomey

Megan Klein Associate Attorney

Lisa Perfetto Law Student Intern

On behalf of:

Jim Black Government Affairs Director Clean Air Council

67 PUC, Website Home Page, http://www.puc.state.pa.us/Home.aspx (last visited June 11, 2010); see also In

re 717 Area Code Relief Plan, No. P-00961071,1998 WL 34068165 (Pa. P.U.C Apr. 9,1998) (referring to the

Commission's "mission serving the public interest"). 68 !n re Application of Trans-Allegheny Interstate line Co., 103 Pa. P.U.C 554, slip op. at 24 (Dec. 12, 2008).

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John Hoekstra Director of Watershed Advocacy Green Valleys Association

Richard A. Martin Coordinator Pennsylvania Forest Coalition

Anne Harris Katz, Ph.D. Founding Member & Board Secretary

Coalition for Responsible Growth & Resource Conservation (CRGRC)

Thomas Au Conservation Chair

Sierra Club, Pennsylvania Chapter

Patrick Grenter, Esq.

Legal Director

Three Rivers Waterkeeper

Drake Saxton President Responsible Drilling Alliance (RDA)

Lynn Senick

Acting Member

Citizens For Clean Water; and Founder and Moderator Susquehanna County Gas Forum

Tracy Carluccio Deputy Director Deiaware Riverkeeper Network

Aimee Erickson Council Coordinator Citizens Coal Council

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Iris Marie Bloom

Director Protecting Our Waters

Barbara Arrindell

Director Damascus Citizens for Sustainability

Myron Arnowitt PA State Director Clean Water Action

John Bogle Director & Founding Member Responsible Drilling Alliance

Victoria Switzer. Resident of Dimock, PA

Thomas Owens Program Assistant Philadelphia Folklore Project

Nadia Steinzor

Marcellus Regional Organizer EARTHWORKS Oil & Gas Accountability Project

Ingrid Lakey Director EQAT (Earth Quaker Action Team)

Stephanie Roberts Farm Manager Skoloff Valley Organic Farm of Susquehanna, PA

Matthew D Thomas Self-employed organic farmer of Summit, PA

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Dave Walczak Steering Committee Member Citizens for Healthy Communities

Mara Alper Associate Professor Ithaca College

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BEFORETHE ^ • & PENNSYLVANIA PUBLIC UTILITY COMMISSION ^ ^ ' O

ADMINISTRATIVE LAW JUDGE SUSAN D. COLWELL PRESIDING C " -

^-.

Docket No. A-2010-2153371

Application of Laser Northeast Gathering Company, LLC for Approval to Begin to Offer, Render, Furnish, or Supply Natural Gas Gathering and Transporting or Conveying Service by Pipeline to the Public in Certain Townships of Susquehanna County, Pennsylvania.

MEMORANDUM OF LAW IN SUPPORT OF LASER NORTHEAST GATHERING COMPANY, LLC'S ANSWER IN OPPOSITION

TO MOTION OF VERA SCROGGINS TO FILE DIRECT TESTIMONY.

Laser Northeast Gathering Company, LLC ("Laser") submits this Memorandum

of Law in support of its Answer in Opposition to Vera Scroggins' ("Ms. Scroggins")

Motion to File Direct Testimony. Ms. Scroggins' failure to timely file direct testimony on

the date required by Presiding Administrative Law Judge ("ALJ") Colwell's April 29,

2010 Scheduling Order precludes her from now filing initial direct testimony with new

issues at this late stage in the case. Ms. Scroggins' status as a pro se protestant does

not excuse her failure to follow the deadline for filing direct testimony in the Scheduling

Order. The filing of initial direct testimony raising new issues at this stage of the case

would prejudice Laser, be improper, and violate Laser's due process rights. The ALJ

should deny Ms. Scroggins' motion.

Procedural History

Ms. Scroggins filed a protest to Laser's Application on February 26, 2010. At the

April 29, 2010 prehearing conference, Ms. Scroggins participated in the discussion of

the schedule and indicated her intention to file testimony and participate in the technical

evidentiary hearings. (Prehearing Tr. at pp. 21-3, 30-3). Ms. Scroggins subsequently e-

HA-244527 v1

mailed the ALJ and parties indicating that she would not file direct testimony and not

provide testimony at the July 7, 2010 public input hearings. (See June 9, 2010 and July

6, 2010 e-mails attached to Laser's Answer.)

The ALJ issued an Amended Scheduling Order dated July 5, 2010 which

permitted the other parties to file supplemental direct testimony on July 21, 2010 which

responded to the new information contained in LNGC Statement No. 1a (supplemental)

which had been served on the ALJ and parties on June 17, 2010. The application by

Ms. Scroggins requests permission to file initial direct testimony which raises new

issues in this application case. Laser believes that the new initial direct testimony will

be similar, if not identical to the testimony filed by Earthjustice on June 11, 2010 in the

Commission's en banc Marcellus Shale docket at 1-2010-2163461 (attached to Laser's

Answer). That testimony was presented by Deborah Goldberg to the Commission at

the June 16, 2010 en banc hearing. See June 16 En Banc Tr. at pp. 178-84. The

Earthjustice June 11, 2010 testimony discusses Marcellus Shale pipeline issues at

pages 3-11 and 13-5. Several of the issues discussed in those sections of the

Earthjustice testimony have not been raised by any party in the direct testimony timely

filed in this proceeding nor are any of these issues included in Ms. Scroggins' protest

filed on February 26, 2010. Laser submits that it would be prejudiced by the

introduction of this testimony at this late stage in the proceeding because it would not

have an opportunity to conduct discovery and prepare responsive testimony within the

time periods contained in the Amended Scheduling Order. This would be true even with

the extension of Laser's rebuttal testimony date proposed in Ms. Scroggins" motion.

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Argument

A. Ms. Scroggins had the opportunity to provide direct testimony, declined to do so, and therefore waived such right.

Section 5.243 ofthe Public Utility Commission's ("Commission") procedural rules

states that a party has the right of presentation of evidence, cross-examination,

objection, motion and argument subject to the Presiding ALJ's determinations.

However, the party will not be permitted to introduce evidence during a rebuttal phase

which should have been included in the party's case in chief. (Section 5.243(e)(2)). Ms.

Scroggins' motion is similar to a party attempting to introduce evidence during a rebuttal

phase when she had the opportunity to do so in intervenor/protestant initial direct

testimony.

Ms. Scroggins participated in the prehearing conference in this matter,

contributed to the determination of a schedule and indicated her intention to file

testimony in the evidentiary proceedings (Tr. pp. 30-3). Page 6 of the April 29, 2010

prehearing Order restates the requirements of Section 5.243 that a party would not be

permitted to raise in later testimony issues that should have been raised in direct

testimony. This Order was served on Ms. Scroggins and provided notice to her that she

was required to file initial direct testimony on June 9, 2010 and that she would not be

later able to raise additional issues in testimony filed later in the case. Ms. Scroggins

later notified the ALJ and parties that she would not be filing direct testimony on June 9,

2010 (June 9, 2010 e-mail) and would not testify at the July 7, 2010 Public Input

Hearings (July 6, 2010 e-mail). Laser submits that the emails demonstrate that Ms.

Scroggins' made a deliberate decision not to file or present testimony in the case and

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waived the opportunity to do so. No reasonable basis is presented in the motion for the

ALJ to now reverse that decision.

B. Caselaw requires the conclusion that Ms. Scroggins' pro se status does not support her fifing direct testimony as requested.

Ms. Scroggins' memorandum argues that Ms. Scroggins status as a pro se

protestant constitutes "reasonable grounds" for her failure to file direct testimony, which

are adequate to support the request for an extension of the deadline for filing direct

testimony in this proceeding. The memorandum's arguments that Ms. Scroggins pro se

status insulates her from the filing requirements of the April 29, 2010 Scheduling Order

are unsupported by Pennsylvania or Commission case law. The Commonwealth Court

rejected an argument that the Court was required to excuse procedural errors by a pro

se litigant in Fraisar v. Pennsylvania Department of Correctional Physicians, 892 A.2d

74 ( Pa. Commonwealth Ct. 2006). In rejecting an argument that the trial court had a

duty to assist a pro se party with complying with procedural issues, the Court stated:

It is well established that any lay person who chooses to represent himself in a legal proceeding must assume the risk that his lack of expertise and legal training may prove to be his undoing, (citations omitted).

892A.2dat77.

The Commission has adopted this holding in its own decisions. In Rosenblum v. Bell

Atlantic, 1995 WL 945253 (Pa. P.U.C), the Commission denied an exception filed by a

pro se complainant that the presiding ALJ and Commission were under a responsibility

to provide assistance to pro se parties in Commission proceedings. In rejecting the

argument, the Commission cited the Pennsylvania Supreme Court's decision in Vann v.

Unemployment Compensation Board of Review, 508 Pa. 139, 494 A.2d 1081 (1985).

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The Commission cites with approval the following statement in the Supreme Court's

Vann decision:

It is, we believe, preferable to simply recognize, as the Commonwealth Court has previously done, that 'any layperson choosing to represent himself in a legal proceeding must, to some reasonable extent, assume the risk that his lack of expertise and legal training wil! prove his undoing.' (citations omitted).

1995 WL 945253 (slip op. at p. 10).

ALJ Kandace F. Melillo reached a similar conclusion in her Initial Decision in

Morningstar v. United Telephone Company of Pennsylvania, Commission Dkt. No. C-

20055486, Initial Decision dated August 14, 2007, wherein ALJ Melillo rejected a pro se

complainant's argument that evidentiary rulings concerning hearsay and relevance

should not apply to the pro se complainant's testimony. ALJ Melillo pointedly noted that

Ms. Morningstar's decision to proceed pro se did not insulate her from the rules of

evidence, citing the Supreme Court's Vann decision and the decision of the

Pennsylvania Superior Court in Jones v. Rudenstein, 401 Pa. Superior Court 400, 585

A.2d 520 ( Pa. Superior Ct. 1991) (Initial Decision at p. 29).

Laser submits that Ms. Scroggins' decision to proceed as a pro se protestant in

this case does not insulate her from the consequences of her failure to file direct

testimony on the date indicated in the April 29, 2010 Scheduling Order. Ms. Scroggins'

motion and memorandum fail to establish reasonable grounds for her failure to timely

file initial direct testimony on June 9, 2010 and the motion should be denied.

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C. Raising new issues in direct testimony at this point causes prejudice and violates due process.

Ms. Scroggins' memorandum also cites the Commonwealth Court's decision in

Info Connections, Inc. v. Pa. PUC, 630 A.2d 498 (501) (Cmwlth Ct. 1993) in support of

an argument that the Commission has authority to waive procedural defects when they

do not affect the substantive rights of the parties. This argument fails to recognize,

however, that Laser will be prejudiced by the introduction of new issues by Ms.

Scroggins' direct testimony filed at this late stage in the proceeding.

As the Presiding Officer is aware, the July 21, 2010 date for the other parties to

file supplemental direct testimony is to provide an opportunity for the parties to respond

to the new information contained in LNGC Statement No. 1a (supplemental). The

scope of the supplemental testimony to be filed by the protestants or intervenors on July

21, 2010 is limited to the supplemental testimony submitted in Laser Northeast

Statement No. 1a (Karam) on June 17, 2010. Stated differently, the only subject ofthis

testimony is the difference between applicant statements 1 and 1a. The July 21, 2010

filing date is not for the purpose of filing initial direct testimony raising new issues.

Laser believes and therefore avers that the initial direct testimony proposed to be

filed by Ms. Scroggins on June 21, 2010 will contain the pipeline issues raised in the

Earthjustice testimony filed in the Commission's En Banc Marcellus Shale proceeding at

Dkt. No. 1-2010-2163461. These issues include, inter alia, the Commission's adoption

of pipeline safety standards in addition to those currently required by the Pipeline and

Hazardous Materials Safety Administration of the United States Department of

Transportation for Class 1 pipeline Ideations and the expansion of the Commission's

authority to regulate gas pipelines not owned or operated by public utilities. These

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issues were not raised in the timely filed initial direct testimony in this case and none are

mentioned in Ms. Scroggins' February 26, 2010 protest. The Applicant is concerned

that Earthjustice is utilizing Ms. Scroggins' participation in this case as a vehicle to

advance its own positions and essentially intervene well after interventions were due.

Permitting these issues to be raised in Ms. Scroggins' proposed direct testimony

would prejudice Laser in that adequate time does not exist in the schedule for Laser to

conduct discovery and prepare rebuttal testimony on these issues. In an analogous

case, the Commission affirmed the decision of ALJ Melillo to reject testimony raising

new issues in a party's rebuttal testimony on the basis that the issues should have been

raised in the party's direct testimony. The Commission expressly adopted ALJ Melillo's

holding that new claims or issues first raised in rebuttal testimony are improper, unfair

and a violation of due process. See Pennsylvania Public Utility Commission v. City of

Lancaster-Sewer Fund, 2007 WL 517134 (Pa. P.U.C.) (slip op. at p 10). The Presiding

Officer has recognized in an analogous situation that a late intervention raising new

issues would result in prejudice to an applicant. In Application of UGI Utilities, Inc.,

Commission Docket No. A-120011F2000, et. seq (Initial Decision dated May 18, 2006),

the Presiding Officer denied a late intervention by Hess Corporation in an application to

transfer the property and customers of a gas utility to UGI Utilities, Inc. The Presiding

Officer recognized that a late intervention would tax the existing case parties to develop

and respond to additional discovery and testimony, and hamper the parties' ability to

prepare for litigation according to the established case schedule. The Presiding Officer

also recognized that the late intervention would broaden the issues in the case at a late

stage (Initial Decision at p. 14). The Initial Decision became final by Order entered June

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6, 2006. Laser submits that permitting the filing of initial direct testimony raising new

issues at this late stage of this application proceeding would present the same issues

and prejudice to Laser as recognized in the UGI Initial Decision.

Laser submits that Ms. Scroggins' attempts to introduce direct testimony with

new issues at this late stage of the proceeding is analogous to raising new issues for

the first time in rebuttal testimony or intervening late in a proceeding. The filing of initial

direct testimony raising new issues in this case is improper, unfair to Laser and a

violation of Laser's due process rights as ALJ Melillo and the Commission found in the

City of Lancaster case. Contrary to the arguments in Ms. Scroggins' memorandum, the

admission of direct testimony with new issues at this stage of the proceeding would

affect Laser's substantive rights and the motion therefore should be denied by the

Presiding Officer.

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Conclusion

For all the foregoing reasons, Laser respectfully requests the ALJ to deny the

motion to file direct testimony and to grant whatever additional relief to Laser that is just

and reasonable underthe circumstances.

Respectfully submitted,

K&L Gates LLP 17 North Second Street, 18th Floor Harrisburg, PA 17101-1507 (717)231-4500 (717)231-4501 (Fax) dan.delaney@klgates.com

Dated: July 15, 2010

dks^

Daniel P. Delaney

Counsel for Laser NprtheasrGathering Company, LLC

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BEFORE THE PENNSYLVANIA PUBLIC UTILITY COMMISSION

Application of Laser Northeast Gathering Company, LLC for Approval to Begin to Offer, Render, Furnish, or Supply Natural Gas Gathering and Transporting or Conveying Service by Pipeline to the Public in Certain Townships of Susquehanna County, Pennsylvania

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Docket No. A-2010-215337;ii. 7-

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CERTIFICATE OF SERVICE

I hereby certify that I have this day served a true and correct copy of the

foregoing by first class mail and email upon the individuals listed, in accordance with the

requirements of Section 1.54 (relating to service by a party).

James A. Mullins, Esq. Office of Consumer Advocate Forum Place, 5th Floor 555 Walnut Street Harrisburg.PA 17101-1923

Adeolu Bakare, Esq. Office of Trial Staff PA Public Utility Commission P.O. Box 3265 Harrisburg, PA 17105-3265

Silver Lake Association c/o William C. Fischer 20159 State Route 167 Blackney, PA 18812

Michael D Fiorentino, Esq. 42 East Second Street Media, PA 19063

Ms. Vera Scroggins 25 Maple Street Montrose, PA 18801

Thomas J. Sniscak, Esq. William E. Lehman, Esq. Hawke McKeon & Sniscak LLP 100 N. Tenth Street Harrisburg, PA 17101

Kevin J. Moody, Esq. Eckert Seamans Cherin & Mellott, LLC 213 Market Street, 8th Floor Harrisburg, PA 17101

Brian J. Clark, Esq. Michael T. Killion, Esq. Buchanan Ingersoll & Rooney, PC 213 Market Street, Srd Floor Harrisburg, PA 17101

HA-244530 vl

John H. Isom, Esq. Michael W. Gang Post & Schell PC 17 North Second Street, 12th Floor Harrisburg, PA 17101

Elizabeth U. Witmer, Esq. Saul Ewing LLP 1200 Liberty Drive, Suite 200 Wayne, PA 19087

Deborah Goldberg, Esq. Megan Klein, Esq. Earthjustice 156 William Street, Suite 800 New York, NY 10038-5326

Brian J. Knipe, Esq. Buchanan Ingersoll & Rooney PC 17 N. Second Street, 15th Floor Harrisburg, PA 17101-1503

Scott J. Rubin, Esq. 333 Oak Lane Bloomsburg, PA 17815

K&L Gates LLP 17 North Second Street, 18th Floor Harrisburg, PA 17101-1507 (717)231-4500 (717)231-4501 (Fax) dan.delaney@klgates.com

Dated: July 15, 2010

Daniel P. Delaney PA Attorney I.D. 239

Counsel for Laser Company, LLC

t Gathering

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