Who Pulled Rank on the U.S. Army Corps of Engineers?

by William Huston / NY Friends of Clean Air and Water
WilliamAHuston@gmail.com 607-321-7846

Here’s a strange one.

On April 7th, the last day to file a comment on the Draft Environmental Impact Statement
for the so-called “Constitution Pipeline”, the US Army Corps of Engineers (USACE) filed this comment: http://elibrary.ferc.gov/idmws/file_list.asp?accession_num=20140407-5245

The USACE is a party to this proceeding because they have jurisdiction for any pipeline that impacts “waters of the United States.”

Don’t try to read it the document above. Its status was quickly changed to “Privileged.”  Meaning: SECRET.

But not before we saved a copy! Read it here: http://www.scribd.com/doc/216940906/US-Army-Corps-of-Engineers-comments-on-DEIS-Constitution-Pipeline-CP13-499

A day later, they filed this comment:

http://elibrary.FERC.gov/idmws/file_list.asp?accession_num=20140408-5149

So if you compare both letters, line by line, you will see they are identical. Except for one paragraph at the end:

“In addition, the New York, Baltimore, and Buffalo District Corps of Engineers (Districts)
are in receipt of requests to extend the public comment period for the Constitution Pipeline
Company, LLC proposed 124.4 mile long, 30 inch diameter natural gas pipeline in the states of Pennsylvania and New York. FERC received requests to extend the comment period from the NYSDEC, USEPA, and USDOI. The agencies have stated the complexity of the project, along with some very specific items by the NYSDEC, necessitate additional time for staff review. The Districts have considered these requests and have decided to grant a 30-day extension until May 7, 2014 for input on the Corps regulatory process.”

(The USACE has a comment period open simultaneously to the FERC comment period.)

So why did they a) change their mind, and b) feel they had to hide this from public review?

Neither the USACE nor FERC followed their own rules regarding privileged material:

http://www.law.cornell.edu/cfr/text/18/388.112

Such as § 388.112(b)(1):
The cover page and pages or portions of the document containing material for which privileged treatment is claimed should be clearly labeled in bold, capital lettering, indicating that it contains privileged, confidential and/or Critical Energy Infrastructure Information, as appropriate, and marked “DO NOT RELEASE.”
Whoops. Not there. Additionally, Federal law places limitations on what material can be withheld from public view. Looks like these criteria were not met either:

FOIA:  http://www.law.cornell.edu/uscode/text/5/552

So what’s going on here?

SPECULATION, partially confirmed by Kevin Bruce of the Army Corps, whom I just spoke with on the phone, who told me, the decision to retract the 30 day comment period
“was made above my pay grade”.

Both the FERC and the US Army Corps of Engineers ultimat

ely report to the Commander-in-Chief, i.e., the President of the United States, Mr. Barack “All of the Above” Obama.

This project is apparently being fast-tracked.

Afton road, March 31, 2014

Look carefully at this photo (shot 3/31/14 on I88 near Afton).

THERE IS NO FERC PERMIT YET.

So why is Constitution Pipeline Company already shipping in materials?

Is this project already been green-lighted? Is the public process just a sham? What do they know that we don’t know?

Who pulled rank on the US Army Corps of Engineers?

I’m thinking maybe it was the guy in the photo below, Mr. Commander-in-Chief, who loves fracking, pipelines, KXL, LNG exports, BP drilling in the Gulf, etc.

Copy of Jeremy’s post-hearing comments:

Once again I have proven that no one should pay any attention to anything I say about what is likely to happen in court.

To make a short story even shorter, Jerry asked the court to grant a delay so that we would have time to find out whether or not the next appeals court takes my appeal. This is the appeal we’ve already filed but which isn’t mandatory, because what I’m appealing is only the conviction on a violation, and I’m not a more respectable criminal who’s done something worse.

To my surprise, assistant DA Tunney didn’t really have any objection, saying he didn’t want to be in the position of sentencing a defendant before his conviction was final (or words to that effect) and, equally to my surprise, Judge Berry went along with it, granting me another 90 days in which to await the appeals court’s decision.

The guiding principle here is that we’re still fighting, still insisting that I was had a right to do what I did. But I use the term “guiding” loosely, because if anything’s guiding me, how come I feel like I’ve been spun around three times with a donkey’s tail in my hand?

Minisink’s Case Rescheduled for U.S. Court of Appeals May 1

The controversial Minisink case challenging both the Federal Energy Regulatory Commission (FERC) and Millennium Pipeline Co., LLC, has been rescheduled for a May 1 hearing at the D.C. Circuit of the U.S. Court of Appeals.

Significantly, the case will set national legal precedent in regard to communities’ rights to defend themselves from unwanted and forcibly sited energy infrastructure by the oil and gas industry; if successful, Minisink, NY, will be the first community to have a brand-new gas compressor station shut down and removed from the location.

The ramifications of this case will be critical to the larger network of gas infrastructure battles in the Northeast. Developments are being closely monitored by both industry and frontline community advocacy groups; the conflict and ensuing case began in June of 2011. With two large gas-fired power plants and several new miles of lateral pipeline hinged on the viability of the Minisink compressor station, Minisink’s success in the upcoming proceedings would be a critical blow to the industry’s plans for the state of NY.

Oral arguments will be presented before Circuit Judges Kavanaugh, Millett, and Wilkins. Both Millett and Wilkins are recent Obama appointees, while Kavanaugh has served on the D.C. Appeals Court since 2006.

Represented by the D.C.-based attorney Carolyn Elefant, ten community-appointed Minisink residents, collectively known as ‘Minisink Residents for Environmental Preservation and Safety’ (MREPS), are the Petitioners in the case. As Respondent and Intervenor in the case, respectively, FERC and Millennium Pipeline’s legal representation will be compelled to split the allotted time for corresponding argument.

In July of 2012, Minisink set rare legal precedent with a 3-2 split vote at FERC to approve the Minisink Compressor Station, with two commissioners dissenting- both the Chairman at the time, Jon Wellinghoff, as well as Commissioner Cheryl LaFleur. FERC has an overwhelming 99% approval rate of all projects that come before them. The findings of the U.S. Court of Appeals will have far-reaching implications for the industry, a host of communities across the country currently and soon to battle infrastructure expansion, and advocacy and alliance groups across the region.

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For more information on the Minisink community and Minisink’s case, please visit www.minisinkmatters.org  / For press inquires, contact Asha Canalos at ashacanalos@gmail.com  / 917. 582. 8409

Chesapeake Energy – former big player in Finger Lakes’ leasing

ProPublica: At the end of 2011, Chesapeake Energy, one of the nation’s biggest oil and gas companies, was teetering on the brink of failure.

Its legendary chief executive officer, Aubrey McClendon, was being pilloried for questionable deals, its stock price was getting hammered and the company needed to raise billions of dollars quickly.

The money could be borrowed, but only on onerous terms. Chesapeake, which had burned money on a lavish steel-and-glass office complex in Oklahoma City even while the selling price for its gas plummeted, already had too much debt.

In the months that followed, Chesapeake executed an adroit escape, raising nearly $5 billion with a previously undisclosed twist: By gouging many rural landowners out of royalty payments they were supposed to receive in exchange for allowing the company to drill for natural gas on their property.

In lawsuits in state after state, private landowners have won cases accusing the companies like Chesapeake of stiffing them on royalties they were due. Federal investigators have repeatedly identified underpayments of royalties for drilling on federal lands, including a case in which Chesapeake was fined $765,000 for “knowing or willful submission of inaccurate information” last year.

Last month, Pennsylvania governor Tom Corbett, who is seeking reelection, sent a letter to Chesapeake’s CEO saying the company’s expense billing “defies logic” and called for the state Attorney General to open an investigation.

McClendon, a swashbuckling executive and fracking pioneer, was ultimately pushed out of his job. But the impact of the Financial Maneuvers that he made to save the company will reverberate for years. The winners, aside from Chesapeake, were a competing oil company and a New York private equity firm that fronted much of the money in exchange for promises of double-digit returns for the next two decades.

The losers were landowners in Pennsylvania and elsewhere who leased their land to Chesapeake and saw their hopes of cashing in on the gas-drilling boom vanish without explanation.

People like Joe Drake.

“I got the check out of the mail… I saw what the gross was,” said Drake, a third-generation Pennsylvania farmer whose monthly royalty payments for the same amount of gas plummeted from $5,300 in July 2012 to $541 last February. This sort of precipitous drop can reflect gyrations in the price of gas. But in this case, Drake’s shrinking check resulted from a corporate decision by Chesapeake to radically reinterpret the terms of the deal it had struck to drill on his land. “If you or I did that we’d be in jail,” Drake said.

Chesapeake’s conduct is part of a larger national pattern in which many giant energy companies have maneuvered to pay as little as possible to the owners of the land they drill. Last year, a ProPublica investigation found that Pennsylvania landowners were paying ever-higher fees to companies for transporting their gas to market, and that Chesapeake was charging more than other companies in the region. The question was “why”……SEE LINK FOR REMAINDER OF ARTICLE & FLOW CHARTING:

http://www.huffingtonpost.com/2014/03/13/fracking-chesapeake-energy_n_4958845.html?utm_hp_ref=tw

Marcellus Watch: Trust, but verify imported drilling waste

State and local officials are well on their way to burying radioactivity as an issue in the debate over whether to allow a major expansion of the Chemung County Landfill on the Chemung River about six miles southeast of Elmira.

The landfill, which has been leased to Casella Waste Systems Inc. since 2005, has been accepting drilling wastes from Pennsylvania since 2009 — often turning away its own municipal waste to save room for the more lucrative imports.

Now the county legislature is considering a plan to increase the landfill’s capacity from 180,000 tons of waste a year to 417,000 tons. The landfill that currently occupies 54 acres of a 327-acre site would add 50 acres of new lined landfill cells.

Chemung County Executive Tom Santulli, a supporter of the expansion, has taken the lead role in denying that radioactivity matters.

In a recent newspaper opinion column he said granite kitchen countertops are “several times more radioactive than drill cuttings.” Besides, he noted, Casella operators have installed a radiation detector at the landfill that has never once been triggered by a load of drilling waste.

Given the commercial opportunity at stake, it’s not likely that Santulli will be objectively weighing the evidence. In his case, the wisdom of Upton Sinclair applies: “It is difficult to get a man to understand something when his salary depends on him not understanding it.”

If not Santulli, then who will consider the matter objectively?

The landfill expansion requires the approval of both the county legislature and the state Department of Environmental Conservation. Both have sidestepped the issue and let Santulli’s simplistic and biased analysis stand.

In a previous Chemung landfill expansion case in 2011, a DEC hearing officer ruled the question of radioactivity irrelevant and disallowed expert testimony about the dangers.

Those experts attempted to point out that drilling wastes originating from the Marcellus shale in Pennsylvania contain unusually high levels of naturally occurring radiation, or NORM. The main threat is Radium 226, a dangerous carcinogen if it reaches water supplies or is inhaled as the byproduct radon, the nation’s No. 2 cause of lung cancer.

Dr. Earl Robinson, an Elmira pulmonologist who has opposed each bid to expand the landfill, testified in 2010 that to accept drilling waste was to recklessly ignore the effects of radioactivity in local water and air.

Those arguments didn’t fly with the DEC staff. At one hearing, a DEC attorney explained that her agency only regulated radioactive substances that had been “processed and concentrated.” NORM didn’t qualify. She testified that the level of radioactivity in the landfill was legally irrelevant to the agency.

In the latest push to expand the landfill, county officials have disallowing a full review of radiological risks on the grounds that the matter was settled in the 2011 DEC hearing case.

So, we’re back to Santulli’s assurances that drill cuttings are harmless and the Casella-installed radiation detector proves radiation is no problem.

But the radiation detector is largely for show. It tests for gamma rays, the most penetrating form of radiation, but not necessarily the most deadly. Only 4 percent of the emissions from Radium 226, the main threat, are gamma rays. The rest are alpha particles, which can’t penetrate loose clothing, let alone the metal sides of Casella’s waste haulers that roll by the detector.

Radium 226’s alpha particles are deadly when inhaled or ingested. “When alpha-emitters get in the body, they can set up business next to cells and bombard them,” said one scientist whose testimony the DEC disallowed.

Santulli wasn’t far off in saying drill cuttings are harmless. Unfortunately, they arrive in a semi-liquid mud or sludge or soup consisting of Marcellus shale liquids that are the real threat.

Radium 226 is soluble in the naturally occurring Marcellus brine. For millennia NORM has leached into that brine that is brought to the surface during drilling.
When the DEC tested the brine from all 12 of the state’s Marcellus shale wells in 2008 and 2009, it found levels of Radium 226 far above the allowable limits for drinking water (5 picocuries per liter) or release into the environment (60 picocuries per liter). Brine from four of the wells showed Radium 226 readings in excess of 10,000 picocuries/liter.

Every well is different, so there’s no guarantee the Pennsylvania drilling wastes are that highly contaminated. But if they are, what better place to haul them to than Chemung, where state and local officials look the other way?

Instead of sidestepping the issue, the DEC should conduct its own tests on the leachate that seeps out of the bottom of the landfill. That leachate is hauled to the local wastewater treatment plant (which isn’t equipped to handle radioactive material) and then dumped into the river. The DEC should take quarterly measurements of leachate from each landfill cell and lagoon and compare them over time.

The alternative is business as usual, where consultants to Casella collect and analyze the leachate. The system invites backscratching so as not to disturb the flow of profits. One of the consulting reports the DEC received in 2012 on Chemung Landfill leachate was signed by the husband of a Casella executive.
Come on, Gov. Andrew Cuomo. Order the DEC to do its job.

Peter Mantius’ opinion column appeared in 3/6/14 Corning (NY) Leader.

Peter Mantius is a freelance journalist from Schuyler County who follows shale gas drilling issues. He is a former reporter at the Atlanta Journal-Constitution and former editor of two business weeklies in the Northeast.

“GAS DRILLING WASTES IN LOCAL LANDFILLS”

“GAS DRILLING WASTES IN LOCAL LANDFILLS” Gary Abraham, attorney and Larry Shilling, Regional Vice President for Casella Waste Systems. 2/26/2014 workshop.

**This is a playlist – click on each picture in right column to view.

“SENECA IN THE BALANCE”

Tuesday, March 11, 2014, 7­9 pm (doors open at 6pm)

Watkins Glen High School Auditorium, 301 12th St, Watkins Glen, NY 14891

Find out how close we are to becoming the gas storage and transportation hub for the Northeast; ​ ​
Discover what we’ve learned about the structural integrity of the salt caverns under Seneca Lake ​ that are slated for storage expansion, and how this could impact the region;
Learn about this expansion plan’s regional economic and public health impacts;
Identify what our region’s legislative bodies think about this project;
Understand the legal standing of the community and possible legal recourse.

FEATURED SPEAKERS include:
Richard A. Young, Ph.D: Distinguished Service Professor (Emeritus), Department of Geological ​ ​Sciences, SUNY at Geneseo
John Halfman, Ph.D: Research Scientist, water quality expert, Finger Lakes Institute, Hobart​ ​William Smith College
Moneen Nasmith: Associate Attorney, Earthjustice, NE Office
Steve Churchill, Seneca County Board of Supervisors
Paula Fitzsimmons, Schuyler County Physician Assistant
Doug Hazlitt, Co­Owner of Hazlitt 1852 Vineyards
Yvonne Taylor & Joseph Campbell, Gas Free Seneca

“GAS DRILLING WASTES IN LOCAL LANDFILLS”

Gary Abraham, attorney and Larry Shilling, Regional Vice President for Casella Waste Systems. 2/26/2014 workshop.

**This is a playlist – click on each picture in right column to view.

Schumer:…not enough to protect many communities along the rail lines…many places in upstate NY…

…..Albany is getting a lot of the risk and almost no economic benefits or jobs from this,” said Susan Christopherson, a professor at Cornell University’s Department of City and Regional Planning.

…..These steps are not enough to protect many communities along the rail lines, Senator Charles E. Schumer, Democrat of New York, said this week. This includes many places in upstate New York, like Buffalo, Rochester, Utica, Syracuse and Albany, that have seen higher rail traffic. He compared the industry’s use of outdated tank cars to “a ticking time bomb” and urged federal regulators to quickly retire these older cars, known as DOT-111s, in favor of models built after 2011 that have better protections.

http://www.nytimes.com/2014/02/28/business/energy-environment/bakkan-crude-rolling-through-albany.html?nl=todaysheadlines&emc=edit_th_20140228&_r=0

“NY’s ENERGY PLAN: Scaling up Renewable Energy or Business as Usual?”

When: View in Calendar » March 5, 2014 @ 6:30 pm - 8:30 pm
Where: View Map » Borg Warner Room, Tompkins County Public Library, 101 East Green Street, Ithaca,NY 14850, USA

Governor Cuomo’s Draft 2014 NYS Energy Plan sets some bold goals for clean energy and increased efficiency. In complete negation of these goals, it also predicts continued and accelerated expansion of natural gas infrastructure in New York State! (See thesolutionsproject.org for what a fossil-free energy future could look like.)

Social Ventures, Dryden Resource Awareness Coalition, and Tompkins County Environmental Management Council invite you to hear from experts just what the 2014 NYS Energy Plan is. They’ll discuss key points — both strengths and weaknesses — in the plan, and explain how you can make effective comments to NYSERDA. Learn why everyone concerned about climate change and in favor of switching to renewable energy sources should make comments on this Plan. This info should help you when you attend one of the scheduled public hearings on the proposed energy plan. Read the Draft of the 2014 NY Energy Plan at www.energyplan.ny.gov.

Featured Speakers:

Jackson Morris, Senior Energy & Climate Analyst with NRDC; former senior policy analyst with Pace Law School’s Energy & Climate Center. He has worked to advance clean energy policies for many years.

Dr. Brice Smith, Associate Professor and Chair of Physics at SUNY Cortland, former senior scientist at the Institute for Energy and Environmental Research. For more than a decade, his work has focused on renewable and sustainable energy systems.

Moderated by Dr. Tony Ingraffea, the Dwight C. Baum Professor of Engineering at Cornell University.

Metered street parking is free after 6:00 p.m. in Ithaca. There is a parking garage on Green Street just east of and across the street from the library ($1/hour) and one on Cayuga Street just south of the library ($1/hour).