Adelphia Gateway, LLC, CP18-46-004

CourtFederal Energy Regulatory Commission
Citation178 FERC ¶ 61, 030
Decision Date20 January 2022
PartiesAdelphia Gateway, LLC
Docket NumberCP18-46-004

178 FERC ¶ 61, 030

Adelphia Gateway, LLC

No. CP18-46-004

United States of America, Federal Energy Regulatory Commission

January 20, 2022


Before Commissioners: Richard Glick, Chairman; James P. Danly, Allison Clements, Mark C. Christie, and Willie L. Phillips.

ORDER GRANTING REQUEST FOR EXTENSION OF TIME

1. On November 1, 2021, Adelphia Gateway, LLC (Adelphia) filed a motion requesting an 18-month extension of time, [1] until June 20, 2023, to construct and place into service the facilities authorized by the Commission in its December 20, 2019 order issuing certificates.[2] For the reasons discussed below, the extension request is granted.

1. Background

2. On December 20, 2019, the Commission issued an order authorizing Adelphia to acquire, construct, and operate the proposed Adelphia Gateway Project, which is divided into the North and South Zones. The project includes the purchase and repurposing of an existing interstate pipeline system in Pennsylvania owned by Interstate Energy Company, LLC (the North Zone) and the construction of new pipeline laterals, compressors, and related facilities in Delaware and Pennsylvania (South Zone).[3] The Certificate Order required Adelphia to make the project available for service by December 20, 2021.[4]

3. The purchased facilities that comprise the North Zone are: an approximately 84.2-mile-long, 18-inch-diameter mainline extending from the Marcus Hook Industrial Complex in Delaware County, Pennsylvania, to the Martins Creek Terminal in Northampton County, Pennsylvania; an approximately 4.4-mile-long, 20-inch-diameter mainline originating in Northampton County, Pennsylvania, and terminating at the

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Martins Creek Terminal; and four meter stations and appurtenant facilities.[5] Adelphia placed the North Zone facilities into service in January 2020.

4. The South Zone project facilities, to be constructed and integrated with the purchased facilities, include: a 5, 625-horsepower (hp) compressor station in Delaware County, Pennsylvania (Marcus Hook Compressor Station); a 5, 625-hp compressor station in Bucks County, Pennsylvania (Quakertown Compressor Station); an approximately 0.3-mile-long, 16-inch-diameter lateral extending from the Marcus Hook Compressor Station to an existing meter station owned by Delmarva Power and Light Company in New Castle County, Delaware (Parkway Lateral);[6] an approximately 4.4-mile-long, 16-inch-diameter lateral extending from the Marcus Hook Compressor Station to interconnections with Transcontinental Gas Pipe Line Company (Transco) and the PECO Energy Company (PECO) in Delaware County, Pennsylvania (Tilghman Lateral);[7] and five meter stations and other appurtenant facilities.[8] Adelphia started construction on the South Zone facilities in October, 2020, and to date has completed construction of the Tilghman Lateral Phase 1 facilities[9] and 60% of the mainline valves.[10] Adelphia reports that it has made significant progress towards completing construction of the Tilghman Lateral Phase 2 facilities, the Parkway Lateral, and the Quakertown Compressor Station.[11] Adelphia expects that many of its South Zone facilities will be available for service as early as this winter heating season.[12]

5. On November 1, 2021, Adelphia requested an 18-month extension of time to complete construction and place the remaining portions of the project into service, due to delays in the receipt of state environmental permits and other delays caused by the

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COVID-19 pandemic.[13] Adelphia states that it has made significant progress towards constructing the project, [14] but explains that, despite this progress, the COVID-19 pandemic caused delays, including necessitating pauses to construction activity due to pandemic protocols.[15] In addition, Adelphia notes that the pandemic's continuing impacts on the supply chain have caused delays in the procurement and delivery of equipment and material.[16] Adelphia expects to obtain the delayed materials by late 2022 and therefore requests an extension of time through June 20, 2023, to ensure sufficient time for the completion of the remaining facilities.[17]

II. Procedural Issues

A. Notice, Interventions, and Comments

6. Notice of Adelphia's Request for Extension of Time was issued on November 3, 2021, and published in the Federal Register on November 9, 2021, with interventions, comments, and protests due on November 18, 2021.[18] With respect to interventions, the notice stated that only motions to intervene from entities that were party to the underlying proceeding would be accepted.[19]

7. Deborah Kratzner filed timely comments. Delaware Riverkeeper Network (Riverkeeper), Clifford Cole, Arianne Elinich, Christine Shelly, Todd Shelly, Brian Weirback, and Kathy Weirback filed timely motions to intervene and comments opposing the extension. Each of these movants was a party to the underlying certificate proceeding.[20]

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8. Pamela West, who was not a party to the underlying proceeding, filed a timely motion to intervene and comments opposing the extension. Sara Welsh, Francis Welsh, Anthony Orr, and Shirley Mann filed late motions to intervene and comments in the extension of time proceeding using a form postcard. All of the postcards were postmarked with a date prior to the November 18th intervention deadline but were not received by the Office of the Secretary until after the intervention deadline.[21] Sara Welsh, Francis Welsh, and Anthony Orr were parties in the underlying certificate proceeding; Shirley Mann was not.

9. In Algonquin Gas Transmission, LLC, [22] the Commission noted that it is not required to solicit public input before acting upon a certificate-holder's request for an extension of time, [23] and that nothing in the Commission's regulations suggests that an opportunity for notice and comment is required. The Commission further announced that only interventions from entities that were party to the underlying proceeding would be accepted in such cases.[24] Since Algonquin, in extension of time cases, we have applied the Algonquin policy to either: reject motions to intervene filed by persons who were not a party to the certificate proceeding, [25] or, where the movant simultaneously filed both a timely motion to intervene in the extension of time proceeding coupled with a late-filed motion to intervene in the underlying certificate proceeding, the Commission considered the late motion under the Rule 214 criteria.[26] In this later scenario, we ultimately denied the late motions to intervene and accordingly denied the timely motions to intervene in the extension of time proceeding because the movants were not parties to the underlying certificate proceeding.[27] We subsequently explained that:

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Our policy articulated in Algonquin upholds the Commission's prior determinations that extensions of time are administrative matters or interlocutory decisions for which intervention and rehearing do not lie - it did not create a new class of pre-and post-certificate regulations. In Algonquin, the Commission decided that the interests at stake in an extension of time proceeding justify a new opportunity for the parties to the underlying certificate proceeding to again seek intervenor status; however, these interests do not justify the same opportunity for other entities.[28]

10. Upon reconsideration, we recognize that extension of time proceedings—which in many instances can occur years after the Commission's initial decision—may raise important questions for landowners and other stakeholders, including the potential of changed circumstances from the underlying proceeding. To ensure that any interested parties are not denied the right to raise issues that may have arisen since the issuance of the certificate, we set aside the Algonquin policy described above. The Commission will accept timely motions to intervene in extension of time proceedings from any person, including those that were not party to the underlying proceeding. We believe that requests to extend deadlines established in certificate proceedings have public interest implications, and accordingly the policy shift we announce here will better ensure that any parties affected by these sorts of projects have an opportunity to vindicate their interests. Entities who did not intervene in the initial proceeding but whose interests may have changed since that time or were not affected by it (such as entities that moved into the project area after the initial proceeding was concluded), should have the opportunity to be heard and have the ability to challenge our decisions on such matters. However, a person who is permitted to intervene in an extension of time proceeding despite not having intervened in the initial proceeding may not relitigate the Commission's decision to issue a certificate, including whether the Commission properly found the project to be in the public convenience and necessity.[29] Untimely motions to intervene in the

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extension of time proceeding will continue to be analyzed under the Commission's Rule 214 criteria for late-filed motions, as discussed below.

11. Here, Pamela West filed a timely motion to intervene in the extension of time proceeding but was not a party to the underlying certificate proceeding. Thus, for the reasons explained above, Pamela West's motion to intervene is granted.

12. With respect to the late-filed motions to intervene filed by Anthony Orr, Francis Welsh, Sara Welsh, and Shirley Mann, because these individuals made a good faith effort to timely intervene by mailing their motions prior to the deadline, their intervention will not delay or disrupt the proceeding or unfairly prejudice any parties, and because as individuals and landowners near the pipeline route they have a direct interest in this proceeding, their motions to intervene out-of-time are granted.[30]

B. Adequacy of Notice

13. Commenters also...

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