McNees Wallace & Nurick LLC

Transcription

1 McNees Wallace & Nurick LLC 100 Pine Street * PO Box 1166 Harrisburg, PA Tel: » Fax: Carl J. Zwick Direci Dial: Direci Fax: czwick@niwn.co April 29, 2011 Roseary Chiavetta, Secretary Pennsylvania Public Utility Coission Coonwealth Keystone Building 400 North Street, 2nd Floor Harrisburg, PA VIA HAND DELIVERY RE: Application of Pcntex Pipeline Copany for Appval to Aend its Existing Certificate of Public Convenience to Begin to Offer, Render, Fuish, or Supply Natural Gas Gathering or Conveying Services by Pipeline to its Existing Custoer and to the Public in the Townships of Wyalusing, Herrick, Terry, Tuscara, Stevens and Wilot in Bradford County, Pennsylvania; Docket No. A Dear Secretary Chiavetta: Enclosed for filing with the Pennsylvania Public Utility Coission ("PUC" or "Coission") are an original and three (3) copies of Pentex Pipeline Copany's Preliinary Objection to the Ptest of Mark West Liberty Midstrea & Resources, LLC. in the above-referenced pceeding. As evidenced by the attached Certificate of Service, all parties to the pceeding are being served with a copy of this docuent. Please date stap the extra copy of this transittal leller and Preliinary Objection, and kindly retu the lo our essenger for our filing purposes. Thank you. Very truly yours, McNEES WALLACE & NURICK LLC By Paela C. Polacek Carl J. Zwick Counsel to Pentex Pipeline Copany CJZ/sds Enclosures c: Certificate of Service cn o n r T ~VC/ ~o RE no o -o c * o cr TO Jrc: CO HARRISBURG, PA LANCASTER, PA STATE COLLEGE, PA HAZLETON, PA COLUMBUS, OH WASHINGTON, DC

2 BEFORE THE PENNSYLVANIA PUBLIC UTILITY COMMISSION APPLICATION OF PENTEX PIPELINE COMPANY FOR APPROVAL TO AMEND ITS EXISTING CERTIFICATE OF PUBLIC CONVENIENCE TO BEGIN TO OFFER, RENDER, FURNISH, OR SUPPLY NATURAL GAS GATHERING OR CONVEYING SERVICES BY PIPELINE TO ITS EXISTING CUSTOMER AND TO THE PUBLIC IN THE TOWNSHIPS OF WYALUSING, HERRICK, TERRY, TUSCARORA, STEVENS AND WILMOT IN BRADFORD COUNTY, PENNSYLVANIA NOTICE TO PLEAD Docket No. A SEC ^3 fn -x> \ TO "Ci CO" vid o tn cr o c: o GO Pursuant to Section 5.101(b) of the Coission's Regulations, 52 Pa. Code 5.101(b), Ptestant MarkWest Liberty Midstrea & Resources, LLC, is hereby pvided notice that any response to the enclosed Preliinary Objections of Pentex Pipeline Copany in the abovecaptioned atter ust be subitted within 10 days of service of the otion. Respectfully subitted, McNEES WALLACE & NURICK LLC Dated: April 29, 2011 By Paela C. Polacel/(Pa. 1.1/78276) Carl J. Zwick (Pa. I.D ) 100 Pine Street P.O. Box 1166 Harrisburg, PA Phone: Fax: Counsel to Pentex Pipeline Copany

3 BEFORE THE PENNSYLVANIA PUBLIC UTILITY COMMISSION APPLICATION OF PENTEX PIPELINE COMPANY FOR APPROVAL TO AMEND ITS EXISTING CERTIFICATE OF PUBLIC CONVENIENCE TO BEGIN TO OFFER, RENDER, FURNISH, OR SUPPLY NATURAL GAS GATHERING OR CONVEYING SERVICES BY PIPELINE TO ITS EXISTING CUSTOMER AND TO THE PUBLIC IN THE TOWNSHIPS OF WYALUSING, HERRICK, TERRY, TUSCARORA, STEVENS AND WILMOT IN BRADFORD COUNTY, PENNSYLVANIA Docket No. A PENTEX PIPELINE COMPANY'S PRELIMINARY OBJECTION TO THE PROTEST OF LAUREL MOUNTAIN MIDSTREAM, LLC EC CP' CZ. ~- c'., ^ (JD 0 a TO THE HONORABLE, THE PENNSYLVANIA PUBLIC UTILITY COMMISSION: Pentex Pipeline Copany ("Pentex"), pursuant to Section Public Utility Coission's ("PUC" or "Coission") regulations, 1 of the Pennsylvania Files this Preliinary Objection to the Ptest filed by MarkWest Liberty Midstrea & Resources, LLC ("MarkWest"). In support of this Preliinary Objection, Pentex respectfully states as follows: I. BACKGROUND 1. On March 8, 2011, Pentex filed an Application with the PUC for appval to aend its Certificate of Public Convenience that is currently on file with the Coission. Specifically, Pentex seeks appval to add natural gas gathering services to the services 52 Pa. Code

4 perfored for its existing transportation custoer (Cargill Meat Solutions Corporation ("Cargill")) and for local pducers in the Townships of Wyalusing, Herrick, Terry, Tuscara, Stevens and Wilot in Bradford County, Pennsylvania ("Pposed Service Territory"). Pentex's Pposed Service Territory is nonexclusive. The natural gas transported for pducers will be used to serve Cargill or injected into the interstate pipeline syste thugh Pentex's existing interconnection point. 2. On March 24, 2011, Pentex filed notice of its Application in a newspaper of general circulation in Pentex's Pposed Service Territory in Bradford County, Pennsylvania. 3. On March 26, 2011, notice of Pentex's Application was published in the Pennsylvania Bulletin. 2 The notice directed all ptests and interventions to be filed with the Coission and served on Pentex on or before April 11, MarkWest filed its Ptest to Pentex's Application on April 11, 2011, requesting, infer alia, that the Coission grant it fullparty status in this pceeding and deny Pentex's Application MarkWest suggests that, if natural gas gathering operations were found in this pceeding to be PUC jurisdictional, MarkWest and other idstrea gas gathering operators ay ultiately be subject to Coission jurisdiction. 4 This result, according to MarkWest, "would be detriental to natural gas gatherers that operate copetitively in the arket." 3 Further, MarkWest cites to the Adinistrative Law Judge's ("ALJ") Prehearing Order in Application of Peregrine Keystone Gas Pipeline, LLC, Docket No. A , to attept 2 41 Pa. B See MarkWest Ptest, p. 7, Wherefore Clause. 4 See id at T 16. MarkWest presuably operates its gathering syste in Washington County, as Mark West's Ptest avers that MarkWest also operates a pcessing facility in Washington County. See id at U 2. 5 Id at] 15.

5 to establish that, while Pentex will not object to the authorization of additional entities to pvide gathering services in the Pposed Service Territory, the Coission ay deterine that Pentex should be the exclusive pvider of gathering service within the Pposed Service Territory According to MarkWest, regulating the natural gas gathering business would be contrary to the copetitive nature of the business and har MarkWest. 7 Based on these conces, MarkWest requests that the PUC find MarkWest has standing in this pceeding to participate with full-party status. 8 II. PROTESTANTS MUST SHOW ADEQUATE STANDING 6. The PUC's regulations require that a ptestant include certain inforation in its ptest to an application 9 A ptest to an application ust: (1) set out clearly and concisely the facts upon which the ptestant's alleged interest or right is based; (2) state the gunds upon which the ptest is based; and (3) set forth facts to establish the ptestant's standing to ptest A ptestant to an application ust have standing to participate in the pceeding. To have standing in a Coission pceeding, a person or entity ust have a direct, iediate, and substantial interest in the subject atter of the application. 11 A direct interest is one that could be adversely affected by the outcoe of the pceeding: an iediate interest requires a close causal connection between the asserted interest or injury and the actions challenged by the 6 Id. at If /rf. at Id at p. 7, Wherefore Clause Pa. Code Id. " Joint Application of PECO Energy Co. & Pub. Seiv. Elec. & Gas Co., 2005 WL (Pa. P.U.C. 2005) (denying ptestant status due to lack of standing) ("PECO Application").

6 ptestant; and a substantial interest requires that the interest be distinct and unique to the ptestant, rather than a generalized interest of the public as whole. 8. An interest is not direct, iediate, and substantial, and therefore does not confer standing, if it is dependent upon uncertain future actions of an applicant. 13 Likewise, standing is not conferred by virtue of a ptestant being a potential copetitor of an applicant. 14 III. PRELIMINARY OBJECTION: MARKWEST'S STATED INTERESTS DO NOT CONFER STANDING UPON MARKWEST 9. Paragraphs 1 thugh 8 are incorporated herein. 10. The ALJ's ruling in the Peregrine Keystone pceeding regarding Mark West's standing to participate in that case is neither binding nor dispositive on the issue of Mark West's standing in this pceeding. Mark West's Ptest in this pceeding fails to establish Mark West's standing. 11. Unlike in Peregrine Keystone, where Mark West's gathering operations are in the sae county as Peregrine Keystone's operations, in this case. MarkWest does not operate gathering facilities in the sae county as Pentex's Pposed Service Territory. MarkWest's gathering syste is in Washington County, 15 not Bradford County where the Pentex Pposed Service Territory is located. Thus, even if the Coission were to designate the Pposed Service Territory as "exclusive" despite Pentex's request to the contrary, MarkWest will not be affected. 12 /d at *l Re Aqua Pa., Inc., 2006 WL , slip op. at *4 (Pa. P.U.C. 2006). 14 Id at*5. 15 See supra note 2.

7 12. MarkWest asserts that, because MarkWest ight require PUC certification if Pentex's Application is granted, MarkWest has standing to participate in this pceeding. The deterination of whether Pentex's pposed service is a "public utility service" that is subject to the PUC's jurisdiction involves two priary issues - (1) whether the pposed gathering service is a "public utility service" (i.e., is the transportation of gas by pipeline or conduit); and (2) whether the service is being offered "to or for the public for copensation." The deterination of whether a service is offered "to or for the public" is based on the specific factual situation. As expressed in a Coonwealth Court decision on this issue, the test as to whether a service is offered "to or for the public" is: whether or not such person holds hiself out, expressly or ipliedly, as engaged in the business of supplying his pduct or service to the public, or to any /iited portion of it, as contradistinguished f holding hiself out as serving or ready to serve only particular individuals. * * * Furthere, the private or public character of a business does not depend upon the nuber of persons who actually use the service; rather, the pper characterization rests upon whether or not the service is available to all ebers of the public who ay require the service. 16 Thus, a deterination that Pentex's service is being offered "to or for the public" does not necessarily ean that MarkWest's service would be pvided "to or for the public." 13. MarkWest does not have a direct, iediate, and substantial interest in the subject atter of the pceeding. The Coission should therefore deny MarkWest's participation in this pceeding for lack of standing. Waltan v. Pa. Pub. Ulil. Co'n, 142 Pa. Cow. 44,49-50 (1991) (ephasis in original).

8 14. Even //'the Coission finds that MarkWest has asserted soe interest to base ils standing in this pceeding in the abstract (which the Coission should not do), as presented in its Ptest, MarkWest's ability to participate in this pceeding should be liited by the Coission to the conces expressed in MarkWest's Ptest. In other words, if the Coission finds that MarkWest has standing to participate in this pceeding, then MarkWest's participation should be liited to only one issue - whether natural gas gathering service is a "public utility" service, thus requiring Coission oversight and regulation Because MarkWest's only possible interest in this pceeding is liited to this issue, and because MarkWest did not reserve any other issues for ptest or dissent, MarkWest should be precluded f addressing in discovery, testiony, and evidentiary hearings, any other issues raised in and/or related to this pceeding. 11 See MarkWest Ptest atuk

9 WHEREFORE, Pentex Pipeline Copany, for the foregoing reasons, respectfully requests the Coission to sustain this Preliinary Objection and disiss MarkWest Liberty Midstrea & Resources, LLC's Ptest for failing to establish adequate standing to participate in this pceeding. In the alteative, for the reasons set forth above, Pentex Pipeline Copany requests that the PUC sustain this Preliinary Objection and liit MarkWest Liberty Midstrea & Resources, LLC's activity in this pceeding to whether gas gathering service is a "public utility" service. Pentex Pipeline Copany also requests whatever additional relief the Coission dees just and reasonable under the circustances. Respectfully subitted, McNEES WALLACE & NURICK LLC By Paela C. Polacek (Pa No ) Carl J. Zwick (Pa. I.D. No ) 100 Pine Street P.O. Box 1166 Hasburg, PA Phone: Fax: ppolacekfgl wn.co czwick@, wn.co Counsel to Pentex Pipeline Copany Dated: April 29, 2011 CO r-o o A) -o o ov^ < CO" CZ o * > c: co 5 o

10 CERTIFICATE OF SERVICE I hereby certify that I a this day serving a true copy of the foregoing docuent upon the participants listed below in accordance with the requireents of 52 Pa. Code Section 1.54 (relating to service by a participant). VIA AND FIRST-CLASS MAIL Jaes A. Mullins, Esq. Office of Consuer Advocate 555 Walnut Street Floor, Foru Place Harrisburg, PA iullinsfgipaoca.org Brian J. Knipe, Esq. Buchanan Ingersoll & Rooney PC 17 North Second Street, 15 Ul Floor Harrisburg, PA brian.knipe@bipc.co Joe Shervinski 123 Scouten Road Wyalusing, PA ioesl(g).fntier.co Diane V. Ward 902 Gve School Road Wysox, PA pekin 2fglvahoo.co Johnnie E. Sis, Esq. Office of Trial Staff Pennsylvania Public Utility Coission Coonwealth Keystone Building P.O. Box 3265 Harrisburg, PA josisfglstate.pa.us Brian J. Clark, Esq. Alan M. Seltzer, Esq. Buchanan Ingersoll & Rooney PC 213 Market Street, 3 rd Floor Flarrisburg, PA brian.clark@bipc.co alan.seltzerf5lbipc.co Trudy Gerlach 6907 Wyalusing New Albany Road Wyalusing, PA tgswoodsfg.epix.net Counsel to Pentex Pipeline Copany Dated this 29 t,1 day of April, 2011, at Harrisburg, Pennsylvania. c; c: 70 o -o 3E CD CO <