In re Petition of N.J. Nat. Gas Co., DOCKET NO. A-2876-15

IN THE MATTER OF THE PETITION OF NEW JERSEY NATURAL GAS COMPANY FOR APPROVAL AND AUTHORIZATION TO CONSTRUCT AND OPERATE THE SOUTHERN RELIABILITY LINK PURSUANT TO N.J.A.C. 14:7-1.4.

DOCKET NO. A-2876-15

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued April 13, 2021

April 29, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Before Judges Yannotti, Haas and Natali.

On appeal from the New Jersey Board of Public Utilities, No. GE15040402.

Paul Leodori argued the cause for appellant Pinelands Preservation Alliance (Paul Leodori, PC, attorneys; Todd M. Parisi, on the briefs).

Geoffrey R. Gersten, Deputy Attorney General, argued the cause for respondent New Jersey Board of Public Utilities (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Andrew M. Kuntz, Deputy Attorney General, and Geoffrey R. Gersten, on the brief).

James C. Meyer argued the cause for respondent New Jersey Natural Gas Company (Riker Danzig Scherer Hyland & Perretti, LLP, attorneys; Kevin H. Marino and John A. Boyle, on the brief).

Maura A. Caroselli, Assistant Deputy Rate Counsel, argued the cause for respondent New Jersey Division of Rate Counsel (Stephanie A. Brand, Director, attorney; Maura A. Caroselli, on the brief).

PER CURIAM

This appeal arises from a petition filed by respondent New Jersey Natural Gas Company (NJNG) for a permit needed to construct a natural gas pipeline through several municipalities and a portion of the Pinelands Area. On August 19, 2015, the Board of Public Utilities (Board) denied appellant Pinelands Preservation Alliance's (PPA's) motion to require the Board to conduct an adjudicatory hearing on the petition and to grant PPA intervenor or participant status in the Board's review process. On January 28, 2016, the Board granted NJNG's petition for the required permit.

PPA appeals from the Board's decisions. Having reviewed PPA's contentions in light of the record and applicable law, we affirm.

I.

The parties are familiar with the procedural facts and history of this matter, which are also discussed in our decision today in PPA's companionappeal in Docket Nos. A-3666-15 and A-3752-15.¹ To avoid repetition, we incorporate that discussion here by reference. Therefore, we need only recite the most salient history in this opinion.

NJNG is a New Jersey public utility engaged in the business of purchasing, distributing, transporting, and selling natural gas in Morris, Middlesex, Monmouth, and Ocean Counties, and the most southeastern portion of Burlington County. While NJNG's northern service area was connected to five interstate transmission feeds, three of which could independently supply that entire region, NJNG's central and southern service areas were connected to the Texas Eastern Transmission (TETCO) gas pipeline, a single interstate feed located outside of NJNG's franchise area in Middlesex County.

On April 2, 2015, NJNG filed the MLUL petition with the Board proposing the construction and operation of an interstate natural gas transmission pipeline to be known as the Southern Reliability Link (SRL). As explained in its MLUL petition, NJNG designed the SRL "to maintain systemintegrity and reliability by creating a new, redundant major feed of natural gas supplies from a second interstate transmission system." The SRL would connect NJNG's existing natural gas system to a new interstate supply point located in Chesterfield and operated by the Transcontinental Pipe Line Company (Transco). The SRL would run from that supply point through six townships: Chesterfield, North Hanover, Upper Freehold, Plumsted, Jackson, and Manchester. A 12.1 mile portion in Ocean County, which included right-of-way (ROW) areas located within and alongside the Joint Base McGuire-Dix-Lakehurst (Joint Base), would cross the State-designated Pinelands Preservation Area, N.J.S.A. 13:18A-2, -9, and -11(b). NJNG filed an amended MLUL petition incorporating a new route through Upper Freehold Township on June 5, 2015.²

Simultaneously with its MLUL petition, NJNG filed a "safety petition" with the Board in accordance with N.J.A.C. 14:7-1.4. That regulation requires: (1) Board approval prior to the construction or operation of a natural gas pipelinethat is intended to be operated in excess of 250 psig (pound-force per square inch gauge pressure), and is located within 100 feet of any building intended for human occupancy; and (2) the pipeline to satisfy the federal requirements set forth in chapter 49 C.F.R. 192, which "prescribes minimum requirements for the design and installation of pipeline components and facilities" and "prescribes requirements relating to protection against accidental overpressuring," 49 C.F.R. § 192.141.

Specifically, the SRL would operate at "an MAOP [(maximum allowable operating pressure)] of 722 psig" in the six municipalities it crossed and be located within 100 feet of 141 structures intended for human occupancy, of which 130 were residential and 11 were commercial. NJNG's petition which, like the MLUL petition, was amended in June 2015, further stated in technical terms:

The Project's proposed transmission line will be constructed of 30-inch outside diameter steel pipe with a 0.500 inch wall thickness. It will be manufactured in accordance with the applicable American Petroleum Institute ("API") Standard 5L with specified minimum yield strength of 60,000 psi and minimum tensile strength of 75,000 psi. The Project will be constructed in full accordance with N.J.A.C. 14:7 and the Federal Regulations for the Transportation of Natural and Other Gas By Pipeline, Part 192, Title 49 of the Code of Federal Regulations ("49 CFR 192"). It is designed for Class 4 Location and will be designed to accommodatefuture in-line inspection ("ILI") devices, in accordance with the requirements for passage of internal inspection devices at 49 CFR 192.150. Additionally, as required in 49 CFR 192.901 through 192.951 (Subpart O), NJNG has an Integrity Management Program in place.

The Project's proposed transmission line will be subjected to 100% non-destructive testing on all welds and a minimum of 1,500 psig of hydrostatic test pressure for 24 hours. As part of this test, it will be subjected to a strength test pressure of approximately 1,800 psig for no greater than one hour, intended to produce 90% of its Specified Minimum Yield Strength. As a result, the MAOP of this section of 30-inch main will be rated at 722 psig, an equivalent MAOP to that of NJNG's existing transmission system. The engineering specifications are detailed on the "Pipeline Engineering Data Sheet" attached to the April 2, 2015 Petition as Exhibit C.

Route studies were performed to determine a route that will minimize and balance the impact to the natural environment and the built environment, taking into consideration the feasibility of constructing the Project. Of the feasible buildable alternatives, the route selected by NJNG, as reflected in the April 2, 2015 Petition, represents that alternative with the least impacts. The Alternatives Analysis is attached to the April 2, 2015 Petition as Exhibit E.

The [SRL] Project was developed as a redundant supply line to an existing system in which additional growth of the system was not taken into account during its design, so no Smart Growth impact is anticipated.

In June 2015, PPA filed a motion for leave to intervene in the Board's review of NJNG's safety petition pursuant to N.J.A.C. 1:1-16.2 or, in the alternative, for leave to participate pursuant to N.J.A.C. 1:1-16.6.

After considering PPA's contentions at an agenda meeting on August 19, 2015, the Board concluded in a thorough written decision that PPA did not have a constitutional or statutory right to an adjudicatory hearing on NJNG's safety petition, and had not demonstrated its entitlement to either intervenor or participant status in the permit review process. However, the Board granted PPA participant status at the evidentiary hearing conducted by Board Commissioner Dianne Solomon on NJNG's MLUL petition. In addition, PPA participated at public hearings held by Commissioner Solomon on both the safety petition and the MLUL petition.

The public hearings were well attended, and the Board received over 1000 written comments concerning the SRL project. With particular reference to NJNG's safety petition, Michael Stonack, Chief of the Board's Bureau of Pipeline Safety, stated that pursuant to State and federal regulations, NJNG was required to install remote controlled valves on the SRL for emergency shutdown. NJNG also had to develop a comprehensive transmission pipeline integrity management program that included performing inline inspections with devicesknown as "smart pigs." In addition, NJNG was required to provide full-time inspectors, qualified by training and experience, to oversee the construction and ensure State and federal regulatory compliance.

Stonack further reported that the Board's staff had determined the proposed SRL was "in compliance with State and [f]ederal pipeline safety regulations." The staff had reviewed NJNG's design and construction plans and had performed field inspections of the entire proposed pipeline route and various alternative routes. "Board staff are charged with making recommendations to the Board." Stonack also stated that the staff intended to conduct pipeline safety compliance inspections during the construction, as well as perform future operating and maintenance inspections as part of the Board's ongoing "Pipeline Safety Program."

Jaclyn Rhoads, PPA's Assistant Executive Director, along with PPA's legal counsel, objected to the SRL, claiming that NJNG had provided conflicting statements about the project's purpose, had not demonstrated the...