awke .V[cKeon&

William T. Hawke Kevin J- McKeon Thomas J, Sniscak Lillian Smith Harris Scott T. Wyland Todd S. Stewart

Craig R. BurgrafF Janet L. Miller Steven K. Haas William E. Lehman Tori L. Giesler Judith D. Cassel

niscak LLP ATTORNEYS AT LAW

100 North Tenth Street, Harrisburg, PA 17101 Phone: 717.236.1300 Fax: 717.236.4841 www.hmslegal.com

October 12, 2010

Via Hand Delivery

Rosemary Chiavetta, Secretary Pennsylvania Public Utility Commission Commonwealth Keystone Building 400 North Street, Filing Room, 2 North Harrisburg, PA 17120

Re: 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; REPLY BRIEF OF LASER NORTHEAST GATHERING COMPANY, LLC

Dear Secretary Chiavetta:

Enclosed please find an original and nine (9) copies of the Reply Brief filed on behalf of Laser Northeast Gathering Company, LLC, in the above-captioned matter. Copies of this Reply Brief have also been served upon the Presiding Officer and each party, as indicated on the attached Certificate of Service.

Thank you for your attention to this matter. If you should have any questions, please feel free to call me.

Respectfully submitted,

Thomas J. Sniscak William E. Lehman

TJS/WEL/bes Enclosures cc: Honorable Susan D. Colwell

Certificate of Service t--,-:

" i '

%

^

MAILING ADDRESS: P.O. BOX 1778 HARRISBURG, PA 17105 O ,

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

REPLY BRIEF OF m £2

[ri 8 LASER NORTHEAST GATHERING COMPANY, LLC

,L>

CO ~yj , -

co Pi f • :

Thomas J. Sniscak William E. Lehman Hawke McKeon & Sniscak LLP 100 North Tenth Street P.O. Box 1778 Harrisburg, PA 17105-1778 (717)236-1300 tisniscakfg.hmslegal.com weleliman@hmslegal.com

Daniel P. Delaney, Esquire George A. Bibikos, Esquire K&L Gates LLP 17 North Second Street, 18th Floor Harrisburg, PA 17101-1507 (717-231-4516 dan.delanev(g),kIgates.com

Counsel for Laser Northeast Gathering Company, LLC

DATED: October 12, 2010

TABLE OF CONTENTS

I. SUMMARY OF REPLY ARGUMENT 1

II. REPLY ARGUMENT 6

A. The Opposing Interveners Have Not Rebutted Applicant's Showing That The Transport Or Conveyance Of Natural Gas And Related Services Is Public Utility Service Under 66 Pa.C.S. §102 6

1. The Opposing Interveners Have Misapplied The Code And The Law In Arguing That The Transport And Conveyance Of Natural Gas That Applicant Will Provide To Customers Is Not "For The Public.,, 7

2. The Use Of Contracts Does Not Cause the Service To Be Not "For The Public." 11

3. This Proceeding Applies To Applicant Only And Does Not Mean That Other Gatherers Providing Service In A Different Manner Will Be Bound By Applicant's Certificate 13

4. The Opposing Intervenors' Arguments Regarding Other States And Other State Statutes Are Irrelevant To This Pennsylvania Determination Under Pennsylvania Law 14

B. Contrary To Markwest And Laurel's Assertions, The Commission Has Exercised Its Judgment And Discretion, In Interpreting And Applying The Public Utility Code, By Allowing Light-Handed Regulation In Appropriate Situations 14

C. The Terms of the Settlement Are Within the Commission's Jurisdiction and in the Public Interest and Should Be Approved by the Presiding Officer 16

1. The Settlement Terms Constitute Voluntary Undertakings By Applicant Which Are In The Public Interest 17

2. The Objecting Parties Mischaracterize The Settlement Terms As Requiring Action By The Commission 22

3. Approval Of The Settlement Terms Fall Within The Commission's Jurisdiction Over Utility Service Pursuant To Section 1501 Of The Public Utility Code 24

4. The Commission Has Jurisdiction Under The Public Utility Code To Enforce The Settlement Agreement.: 26

5. The Settlement Does Not Require The Commission To Exercise Authority Over Applicant's Use Of Eminent Domain 29

6. The Settlement Does Not Require The Commission To Exercise Jurisdiction Over Easements And Right-Of-Way Agreements 30

7. The Settlement Does Not Require The Commission To Exercise Jurisdiction Over Environmental Issues 31

8. The Commission Has Jurisdiction To Approve Non-Unanimous Settlements 32

D. Contrary To Scroggins' Main Brief, The Commission Has No Authority Over Siting Of Applicant's Gathering Lines 33

E. PIOGA's Attempt To Introduce Extra-Record Evidence At The Briefing Stage Should Be Disregarded 35

F. OCA's Generic Concerns Regarding The Status Of Other Gatherers And Their Operations Is Not The Proper Subject Of This Proceeding, And Should Not Delay Applicant's Application, Which Should Be Determined Based Upon Its Own Merits and Record 36

III. CONCLUSION 38

i i

TABLE OF AUTHORITIES

Cases

Application of Allegheny Land and Exploration, Inc., Docket No. A-125136 (Opinion and Order entered March 7, 2005) 9, 10, 15

Application of Ardent Resources, Inc., Docket No. A-140005 (Opinion and Order entered April 16, 2007) 9, 10, 15

Application of National Transit Company for approval of the abandonment and discontinuance of crude oil gathering and pipeline transportation operations. Docket No. A-140300 F2000 (Order entered May 25, 2001) 9

Application ofPentex Pipeline Company, Docket No. A-140325 (Opinion and Order entered November 16, 1988) 9

Application ofUGI Utils., Inc., UGI Utils. Newco, Inc. and Southern Union Corp.,

206 W.L. 4794387 (Pa. P.U.C.) 20, 21

ARIPPA v. Pa. Pub. Util. Comm 'n., 792 A.2d 636 (Pa. Cmwlth. 2002) 32, 33

AT&T v. Pa. Pub. Util. Comm'n., 558 Pa. 290, 737 A.2d 201 (Pa. 1999) 35

Bethlehem Steel Corporation v. Pa. Pub. Util. Comm'n, 680 A.2d 1203 (Pa. Cmwlth. 1996) 8

Commonwealth of Pennsylvania v. United States Steel Corp., 325 A.2d 324

(Pa. Cmwlth. 1974) ., 28

Commonwealth v. Spotz, 552 Pa. 499, 716 A.2d 580 (1998) 34

DrexelbrookAssocs. v. Pa. Pub. Util. Comm'n, 418 Pa. 430, 212 A.2d 237 (Pa. 1965) 12

Elkin v. Bell Telephone Co. of Pa., 491 Pa. 123, 420 A.2d 371 (1980) 27

George v. Pa. Pub. Util. Comm'n., 735 A.2d 1282 (Pa. Cmwlth. 1999) 35

Global Eco-Logical Servs., Inc. v. Dep 't ofEnvtl. Prot., 789 A.2d 789 (Pa. Cmwlth. 2001) 27,28,29

Joint Application for Transfer by Merger of the Title to All Properties ofTPC Pipeline Company to Conoco Pipeline Company for the Purpose of Offering, Furnishing or Supplying Intrastate Oil Pipeline Service to the Public in Delaware and Philadelphia Counties, Pennsylvania, Docket Nos. A-140003 and A-140002F2000 (Order entered January 21, 2004) 9

Joint Application of Pennsylvania-American Water Co. and Thames Water Aqua Holdings, 202 W.L. 32163061 (Pa. P.U.C.) 19, 20, 21

Joint Application of UGI Utils., Inc. and PPL Gas Utils. Corp., 2008 W.L. 3925861 (Pa. P.U.C.) 18

in

Joint Petition of Border Realty and the Borough ofClarks Summit, Lackawanna County, for Declaratory Judgment that the Intra-Municipal Transmission of Wastewater will not Subject the Borough to PUC Jurisdiction under 66 Pa.C.S. §102, Docket No. P-00072255 (Order entered May 31, 2007) 11, 12

Mr. and Mrs. Michael J. Trucco, 97 Pa. P.U.C. 100; 2002 WL 31058115

(Order entered March 29, 2002) 36

PECO Energy Company v. Township of Upper Dublin, 922 A.2d 996 (Pa. Cmwlth. 2007) 25

Popowsky v. Pa. Pub. Util. Comm'n., 550 Pa. 449, 706 A.2d 1197 (1997) 15

Popowsky v. Pa. Pub. Util. Comm'n., 653 A.2d 1385 (Pa. Cmwlth. 1995) 25

Prosser v. Columbia Gas of Pennsylvania, Inc., 206 W.L. 6611443 (Pa. P.U.C.) 25

UGI Utilities, Inc. v. Pa. Pub. Util. Comm'n., 684 A.2d 225 (Pa. Cmwlth. 1996) 7

Waltmanv. Pa. Pub. Util. Comm'n., 596 A.2d 1221 (Pa. Cmwlth. 1991) 7

WestPenn Power Company v. Pa. Pub. Util. Comm'n, 578 A.2d 75 (Pa. Cmwlth. 1990) 25

Western PA Water Co. v. Pa. Pub. Util. Comm'n., 471 Pa. 347, 370 A.2d 377 (1977) 21

Statutes

IPa.C.S. §1921(a) 9

lPa.C.S. §1922(2) " 9

15Pa.C.S. §1511 23,30,34

15Pa.C.S. §1511(c) 5,33

66 Pa.C.S. §102 1, 2, passim

66 Pa.C.S. §102(1X0 1,8

66 Pa.C.S. §102(l)(v) 1, 8, 9, 10

66 Pa.C.S. §502 4,26,31

66 Pa.C.S. §1501 4,24,25

35 P.S, §6018.602 29

Regulations

52 Pa. Code §60.2(2)-(6) 16

IV

I. SUMMARY OF REPLY ARGUMENT

The opposing intervenors have misapplied the Public Utility Code and the law in arguing

that the Laser Northeast Gathering Company, LLC's ("Applicant," "Laser," or "Company")

transportation and conveyance of natural gas is not "for the public" because the customers that

Applicant will be providing service to are other than typical "retail end-users." Opposing

intervenors cite to no cases that support the argument that Section 102 of the Code is limited to

"retail end-users," because there are no cases that limit the public to such definition. In actuality,

the case law, as described supra and in Applicant's Main Brief proves the opposite of their

contention.

Moreover, their interpretation fails to recognize that there are two separate and

independent provisions in Section 102 of the Code, 66 Pa.C.S. §102, that determine public utility

status. Specifically, they are Section 102(l)(i) and Section 102(l)(v). Neither of these

provisions expressly supports their attempt to impermissibly re-write them. Only Section

102(l)(i) arguably is limited to burner-tip customers as it references "distributing natural

gas . . . to or for the public." In contrast. Section I02(l)(v) separately and independently

references and applies to "pipelines" who "transport or convey" commodities such as natural

gas "for the public." No mention is in either section of exemptions for serving sophisticated

customers, large customers, burner-tip or retail customers, wholesale customers, or pipeline

customers needing transport or conveyance from upstream, midstream, downstream or any

stream.

The Commission itself has refuted their arguments as it has repeatedly certificated

pipeline utilities under Section 102(l)(v) for gas, oil, oil gathering, or gas gathering dating back

to the 1950s and recently in the 90's and in this decade. As the evidence overwhelmingly

demonstrates, Applicant's transport and conveyance of natural gas for any customer that needs

its service qualifies as service "for the public" as defined by the Code and case law.

Equally unavailing is the opposing interveners' assertion that Applicant's use of

contracts merely to delineate the terms and conditions of service provided to its customers in any

way excludes or limits the customers that can utilize Applicant's service so as to be not "for the

public." Applicant's use of contracts is not a limitation, but rather a vehicle where the terms and

conditions of service are best determined by mutually acceptable negotiated contracts by utility

customers and the utility. There are no cases stating that the use of contracts per se to delineate

the terms of service means that the service offered is not public utility service. There is more to

it than the simple existence of a contract. Indeed, the Commission allows such negotiated

contracts for regulated natural gas transportation service and for service by contract by natural

gas Local Distribution utilities for large customers. Moreover, the opposing intervenors

argument would have every ordinary contract or service agreement between a customer and a

utility - which are routine in tariffs and use by public utilities - be a point to refute public utility

status and regulation. Their interpretation would deregulate virtually all present utility service in

Pennsylvania.

The opposing intervenors' arguments that other gatherers will be bound by the conditions

to the Applicant's certificate or that there are other states that do not regulate gathering service

are, respectively, incorrect and irrelevant to this proceeding. This proceeding involves

Applicant's services only and its holding itself open to all comers, and will not mean that other

gatherers who provide service differently or to limited or alter-ego customers will qualify as

public utilities. Likewise, Section 102 of the Code specifically regulates the transporting or

conveyance of natural gas by pipeline, and how other states regulate or do not regulate pipelines

under their different statutes is simply not applicable in this matter.

Applicant submits that the Commission has clear authority under the Code, and should,

as it has in other instances, exercise light-handed regulation of the Applicant's gathering and

transportation service to customers. The statute does not dictate rate-base rate-of-retum rate

setting and regulation, and the Commission can determine that the contracted/negotiated rates

and terms of service are all that is necessary as it has in other competitive situations and utility

industries. Notably, the Commission allows natural gas transportation service and service by

Local Distribution natural gas public utilities by contract to large or sophisticated users.

Applicant submits that the terms of the Joint Petition for Settlement are within the

Commission's jurisdiction to approve and in the public interest. Applicant's position is

supported by the Public Utility Code, which provides authority to the Commission to adopt

conditions to certificates that it deems just and reasonable and to enforce its orders. These

powers and similar settlements have been approved by the Commission and have been upheld by

Pennsylvania Appellate courts.

Contrary to the opposing interveners' arguments, the Commission has frequently

approved conditions as part of the issuance of a certificate which are voluntarily proposed by

parties but which the Commission would have no ability or jurisdiction to unilaterally impose

under the Public Utility Code. There is a clear distinction in the case law as to conditions that

are voluntarily entered into and those which the Commission or other parties have tried to

impose on certificates. This is clearly a case where the conditions have been voluntarily entered

into and these conditions should be approved by the Commission as it has done so numerous

times in the past.

The objecting parties also mischaracterize the settlement terms as requiring certain

prohibited actions by the Commission. That is not true. First, a review of the settlement terms,

however, indicates that each is a voluntary undertaking requiring affirmative action by the

Applicant which generally does not involve actions by the Commission or its Staff. Second,

should a matter or dispute arise over a matter outside of the Commission's jurisdiction, the case

law cited later in this Reply Brief shows that the matter can (and has been) referred to the

appropriate agency or court for a determination on the merits to enable the Commission to later

determine if a condition to certification has been honored.

In addition, the Commission has jurisdiction over the settlement terms as a result of its

jurisdiction over public utility facilities and service pursuant to Section 1501 of the Public Utility

Code, 66 Pa.C.S. §1501. Service is broadly defined in that section and in related case law. All

of the terms of the settlement address acts done, rendered or performed by Applicant to provide

service, or facilities that will be used by Applicant to provide a public utility service, and the

Commission has jurisdiction to determine the reasonableness of the service contained in the

terms. The Commission also has the authority to enforce its orders under Section 502 of the

Code, 66 Pa.C.S. §502 should issues later arise concerning Applicant's compliance with the

terms of the conditions to its certification. The settlement does not require the Commission to

exercise jurisdiction over the Applicants use of eminent domain, easements and right-of-way

agreements or environmental issues. The terms addressing these issues are merely a reasonable

and good-will response to those concerns raised by the public and the parties concerning these

issues. Any Commission enforcement proceeding to enforce any of these terms would merely

involve a Commission determination that these actions or terms were undertaken or included in

the terms of an easement - so it becomes more of a question of compliance with a condition as

opposed to making actual eminent domain, easement, right-of-way or environmental

determinations that, if necessary, can be referred to the appropriate agency or court.

The Commission also has jurisdiction to approve non-unanimous settlements, where, as

here, all the participants to the proceeding have participated fully in the proceeding and had

every opportunity to participate in the settlement discussions. At the hearing, the non-

participating parties stated that they had no cross-examination for the Applicant's witnesses

involving the settlement and that their only issues with the settlement were legal ones that would

be addressed in briefs. Therefore, the non-participating parties received all due process

protections under the law and have no right now to complain that because they did not sign onto

the settlement, it should be rejected.

The Commission has no authority over the citing of Applicant's gas gathering line

because such authority is precluded by Section 1511(c) of the Business Corporation Law

("BCL"), 15 Pa.C.S. § 1511 (c), which limits Commission approval for the siting and

condemnation of property for only aerial electric or telephone lines outside of the public right-of-

way. Such statutory provision could have, but did not, empower the Commission's siting of

intrastate pipelines. Under statutory construction principles, the inclusion of one particular item

(in this case. Commission siting review of aerial electric and telephone lines) evidences a

legislative intent that other utility facilities (here, intrastate gas pipelines) are not included. That

is why the Commission does not regulate pipeline or main siting for local distribution natural gas

utilities. In any event, the Applicant via the Joint Petition for Settlement addresses most, if not

all, of the siting concerns raised by Public Input Testimony and the Testimony of the participants

to this proceeding.

PIOGA's attempt to introduce extra-record evidence in its Main Brief should be stricken

as contrary to the Commission's regulations and the law. Any attempt to do so in its Reply Brief

should be treated the same.

The OCA's conceptual concerns regarding the public utility status of other gatherers is

not the subject of this proceeding. This proceeding is not about other gatherers who may hold

themselves out differently, serve different areas, impose limitations, serve affiliates or alter-ego

customers, and may not be willing to take on all comers and types of customers, as does the

Applicant. The different facts and circumstances of other gatherers that may have bearing on

their public utility status or not is of no moment in this proceeding that concerns only Laser's

application. These conceptual concerns by the OCA should neither delay nor impact the

determination of Applicant's record and merit.

H. REPLY ARGUMENT

A. The Opposing Intervenors Have Not Rebutted Applicant's Showing That The Transport Or Conveyance Of Natural Gas And Related Services Is Public Utility Service Under 66 Pa.C.S. §102.

Applicant's Main Brief overwhelmingly demonstrates that the natural gas gathering and

transportation service that it will provide to the public for compensation is public utility service

as defined by the Code and case law. The opposing interveners' attempt to mischaracterize the

service as limited to a defined and privileged group rings hollow when judged against the Code,

case law, and evidence of record. The opposing intervenors largely ignore the fact that the case

law supplies the framework in defining the terms "for the public," as used in the Code. The

evidence presented by the Applicant clearly demonstrates that the customers it is serving are

included in "the public" and is dispositive of this inquiry.

1. The Opposing Intervenors Have Misapplied The Code And The Law In Arguing That The Transport And Conveyance Of Natural Gas That Applicant Will Provide To Customers Is Not "For The Public."

The opposing intervenors argue that the proposed service is not "for the public" because

the customers that Applicant will be providing service to are a sophisticated, defined, privileged

and limited group, who do not qualify as the typical "retail end-users" that the Code

contemplates in the words, "for the public."1 Contrary to this argument, which they fail to

support with any pertinent case law, the sophistication of the customer is not determinative of

whether the service involved meets the statute. Their attempt to unilaterally amend or revise the

statute by argument so as to avoid potential Commission jurisdiction over their operations must

be rejected.

Specifically, they emphasize that Applicant's customers will be sophisticated,

"up-stream" users who typically do not qualify as "retail end-users." They cite to no cases that

support the argument that Section 102 of the Code is limited to "retail end-users." That is

because there are no cases that limit the public to such a narrow class. In actuality, the case law

proves the opposite of their contention.

As explained more fully in Applicant's Main Brief, in Waltman v. Pa. Pub. Util.

Comm'n. and UGI Utilities, Inc. v. Pa. Pub. Util. Comm'n., the Commonwealth Court held

that despite services being provided primarily to sophisticated end-users that are economically

capable of utilizing the services, the characterization of the customers is not a determinative

factor in reviewing the issue of whether service is to the public.4 The Commonwealth Court has

' Markwest Main Brief at 9-10; Laurel Main Brief at 10-12. 2 596 A.2d 1221 (Pa. Cmwlth. 1991). 3 684 A.2d 225 (Pa. Cmwlth. 1996). 4 Waltmanv. Pa. Pub. Util. Comm'ml 1224.

also recognized that the "public" may be comprised of only commercial users. It is clear from

the case law just cited that, even if Applicant's customer group was limited by economics to

sophisticated producers, which it is not,6 service to this group is still "for the public" as defined

by the case law.

Moreover, their interpretation fails to recognize that there are two separate provisions in

Section 102 pertaining to utility status over natural gas operations:

"Public utility."

(1) Any person or corporations now or hereafter owning or operating in this Commonwealth equipment or facilities for:

(i) Producing, generating, transmitting, distributing or furnishing natural. . . g a s . . . to or for the public for compensation.

* * *

(v) Transporting or conveying natural. . . gas, crude oil, gasoline, or petroleum products, or other fluid substance, by pipeline or conduit, for the public for compensation. (Emphasis added)

First, the Legislature in the above provision never states that service "for the public"

under Section 102 is limited to "retail end-users" which Laser assumes means burner-tip

customers. Second, the Legislature made a distinction in (i) and (v). The former likely covers

burner-tip service as it states "to or for the public." The latter, (v), does not require "to" the

public but rather only "for" the public. Third, the Legislature could have exempted "service to

sophisticated customers." It did neither.

Moreover, (v) is a specific and separate section that covers transporting or conveying

natural gas by pipeline so it should be beyond debate that the Legislature envisioned pipeline

utilities who, by definition, carry the commodities identified in (v). Under the opposing

5 Bethlehem Sleet Corporation v. Pa. Pub. Util. Comm 'n, 680 A.2d 1203 (Pa. Cmwlth. 1996). An Applicant's witness stated that its customers would be large capitalized producers, small capitalized producers,

individual landowners Owning wells, marketers, or LDC companies, or landowner groups who aggregate together. N.T. at 400:12-23.

intervenors ' argument, there could never be a pipeline utility and that means (v) is surplusage or

is meaningless. A fundamental rule of statutory construction is that provisions in a statute must

be given effect and that provisions are to be given effect as opposed to being considered

meaningless.7 The opposing interveners ' interpretation of the plain language of Section 102

violates such rules.

Moreover, as discussed in detail at pages 21 to 24 of Applicant ' s Main Brief, the

Commission has repeatedly certificated pipeline utilities that "transport or convey" commodities

that are not "burned" by the customer. These cases include not only gathering and transmission

of oil products, but also the reality that the Commission has previously certificated gatherer

natural gas pipeline utilities as early as 1915, and more recently 2007 . 8 Applicant 's position is

by no means a new or novel request.

The opposing interveners ' invitation to amend or emasculate subsection (v) must be

ignored.

7 1 Pa.C.S. §1921(a); 1922(2). 8 See Application of Ardent Resources, Inc., Docket No. A-I40005 (Opinion and Order entered April 16, 2007) ("Ardent") (Ardent certified as a public utility as defined in 66 Pa.C.S. §102(l)(v), because Ardent, while providing gathering service to only three customers, would consider providing service to other gas producers if requested); Application of Allegheny Land and Exploration, Inc., Docket No. A-125136 (Opinion and Order entered March 7, 2005) (?Allegheny") {Allegheny certified as public utility to construct, operate and maintain pipelines for the sole purpose of gathering and transporting gas by a pipeline from wellheads to ... a stripping or fractionation plant capable of processing gas to various pipeline specifications as stated in respective utility tariffs.); Application of Pentex Pipeline Company, Docket No. A-140325 (Opinion and Order entered November 16, 1988) ^Pentex") (Pentex certified as public utility to construct a pipeline and transport natural gas from an interstate pipeline located in Wyalusing Township to a packing company located in Wyalusing, Pa.); Application of National Transit Company for approval of the abandonment and discontinuance of crude oil gathering and pipeline transportation operations. Docket No. A-140300 F2000 (Order entered May 25, 2001) (National Transit's certificate of public convenience to gather and transport petroleum and petroleum products by pipeline was issued on December 28, ]9)5, at Application Docket No. 444, and it subsequently acquired the petroleum gathering and transportation fines of South West Pennsylvania Pipeline through acquisition at Application Docket No. A-78210 on February 11, 1952); Joint Application for Transfer by Merger of the Title to All Properties ofTPC Pipeline Company to Conoco Pipeline Company for the Purpose of Offering, Furnishing or Supplying Intrastate Oil Pipeline Service to the Public in Delaware and Philadelphia Counties, Pennsylvania, Docket Nos. A-140003 and A-I40002F2000 (Order entered January 21, 2004).

Equally unavailing, is the opposing intervenors' argument that gatherers typically provide

service to "upstream customers" as opposed to "retail end-user," burner-tip type customers. The

statute makes no distinction to upstream, downstream, midstream or any stream. Instead, it

states "transporting or conveying. . . natural g a s . . . by pipeline, for the public, for

compensation,"9 and not even the opposing intervenors can contest that transporting or

conveying gas for customers is what Applicant proposes and will do. Thus, whether a customer

is upstream or downstream does not make a difference to whether the service is provided to the

public. Moreover, as stated in Applicant's Main Brief and by opposing intervenors, the

Commission has already certified two gas gathering pipeline companies that provided service to

"upstream" type customers - the same as Applicant will here.10 Despite the opposing

intervenors' accusations that the Commission in its entirety was somehow asleep at the wheel

when it decided these cases, the fact remains that both Ardent and Allegheny were gathering

companies that the. Commission decided should be certificated as providing public utility service

to the public and customers similar to those the Applicant will serve.11

9 66 Pa.C.S. §i02(!)(v). 10 Ardent and Allegheny, supra. 1' Applicant's customer base will be broader than those in Ardent and Allegheny. As to the wide potential variety of customers, a Laser witness explained:

The purpose-and as you recall from the record, our company acquired the existing Laser Northeast Company in July, 2010. And, our purpose in making that acquisition was to commit capital and manage expertise to build the pre-eminent gathering system to serve any and all potential customers needing to move gas through the pipeline system. So that would include large capital, largely capitalized producers, small capitalized producers, individual landowners owning wells, marketers, or LDC companies, landowner groups who aggregate together. Any and all opportunities to serve people seeking to take natural gas out of the ground and move it through the pipelines. Q; Are you making your service available to all of those types of businesses within your

service area? A: Absolutely. N.T. at 400:12-23. We're at the very early stages of development of the Marcellus Shale, particularly in Susquehanna County. And, we are on the ground floor of that. And, our primary business purpose is to grow with the development of the Marcellus Shale, to serve as many producers, landowners, marketers and LDCs as possible, to grow with the resource as it grows. So that we foresee ourselves serving a substantial number of customers once we get the system built and continue to grow. N.T. at 415:13-20.

10

Applicant is not saying that these cases provide mandatory precedent for the ALJ and the

Commission to blindly decide that all gathering service is public utility service. Other gatherers,

that provide service to different types of customers, in a different manner and limit their

customers sufficiently, might not be providing service for the public as is Applicant. Those

determinations can be made at the appropriate time and under the appropriate set of facts.

However, those future determinations are neither relevant nor are they any basis to oppose or

delay Applicant's request here. Applicant has shown that it will provide its gas gathering and

transportation service to anyone who wishes to utilize its services, and under the facts presented

in the record, it has shown that it is providing service for the public for compensation.

2. The Use Of Contracts Does Not Cause the Service To Be Not "For The Public." .

There is no merit to the assertions that Applicant's use of contracts merely to delineate

the terms and conditions of service provided to its customers, in any way excludes or limits the

customers that can utilize Applicant's service so as to be not "for the public." As explained in

Applicant's testimony and Main Brief, its use of a contract is not a limitation but rather a

vehicle - not unlike that used for public utility natural gas transportation service or for the many

natural gas offerings by LDCs, where the terms and conditions of service are best determined by

a mutually acceptable and negotiated contract by sophisticated utility customers and the utility:

However, the contract is not intended to be exclusionary. I mean the purpose of the contract, because these types of transactions require significant technical requirements and delivery points and other terms and conditions of service, it is largely established to delineate the conditions and terms and technical requirements of the relationship. N.T. at 401:3-9.

The opposing intervenors rely on Joint Petition of Border Realty and the Borough of

Clarks Summit, Lackawanna County, for Declaratory Judgment that the Intra-Municipal

11

Transmission of Wastewater will not Subject the Borough to PUC Jurisdiction under 66 Pa.C.S.

§ W 2 n and cases cited therein to make a universal and unqualified statement - devoid of

necessary factual context in each situation — that the use of contracts per se limits the customers

and therefore the service is not "for the public."13 Border Realty, however, is limited to a

specific set of facts, where the service was truly limited to one specific customer. The

Commission stated: "where service is only being provided to a limited number of users pursuant

to a contractual relationship, it will not be deemed to be service 'for the public.'"14 In Border

Realty and Drexelbrook, the crucial facts were that service was not offered to all comers and the

service was limited to specific customers - and not the fact that there was a contractual

relationship. In contrast, Applicant holds itself open to all comers to the extent capacity exists,

and the contract is simply for details to effectuate customer requirements. N.T. at 401:3-9. That

was not the case in Border nor in the cases the opposing intervenors misapply here.

Moreover, the mere use of a contract does not require a finding that the service offered is

not public utility service. If that were true, the application for service agreements required by

nearly all gas, water, electric, telephone and other utilities for residential, business, commercial,

and industrial customers to obtain service would mean that those services are not public utility

services. That result would be absurd, and case law makes it clear that it is more pertinent to see

if the contract is used to exclude, and to consider all of the other facts and circumstances bearing

on the utility status issue. Here, these non-excluding contracts and Applicant's openess in

serving all comers and a variety of potential customers, supports this being service "for the

public" as a pipeline utility.

12 Docket No. P-00072255 (Order entered May 31, 2007). 13 Markwest Main Brief at 10; PIOG A Main Brief at 10-13. ™$X\p Op zfictimg Drexelbrook Assocs. v. Pa. Pub. Util Comm'n,A\% Pa. 430, 212 A.2d237(Pa. 1965).

12

3. This Proceeding Applies To Applicant Only And Does Not Mean That Other Gatherers Providing Service In A Different Manner Will Be Bound By Applicant's Certificate.

The opposing interveners' concern that all gatherers will be bound by a finding that

Applicant's services are public utility services is wrong for several clear reasons. First,

Applicant's circumstances and services are unique to Applicant and will not bind other gatherers

with different facts, who hold themselves out differently, operate differently, or serve, or may

serve a different territory than that sought by Applicant.15 Applicant, in the Joint Petition, has

enumerated numerous conditions to be applied to its certificate. These conditions do not apply to

any other gatherer. Opposing intervenors are suggesting, incorrectly, that the Commission

would breach Pennsylvania law by essentially treating Applicant's determination as a regulation

to be applied to anyone other than Applicant. That issue should be dismissed on its face because

a determination as to the public utility status of Applicant will not bind the Commission as to any

other gatherer.

OCA's concern as to the public utility status of any other gatherer can be made at the

appropriate time and under the unique set of facts that are presented in other proceedings or statute

compliance matters. It is simply premature and unfair to delay the Applicant's application because

of unfounded speculation that this will in any way affect the rights of other gatherers when as a

matter of law it cannot. Moreover, it is inappropriate to address compliance or non-compliance of

other gatherers in this proceeding where Laser and Laser's application alone is the subject of the

proceeding. Finally, none of the opposing intervenors presented facts showing they are identical to

Applicant or that their business plan and willingness to serve are the same, so even if the

Commission were to illegally treat Laser's conditions as regulations (i.e. binding norms) the

opposing intervenors failed to adduce sufficient facts to support their concern.

Joint Application for Settlement at 16, |34.

13

4. The Opposing Intervenors' Arguments Regarding Other States And Other State Statutes Are Irrelevant To This Pennsylvania Determination Under Pennsylvania Law.

The way other states and jurisdictions regulate the gathering and transportation of natural

gas is irrelevant to the proceeding at hand. The Applicant is seeking certification of its public

utility services under the Public Utility Code, 66 Pa.C.S. §102, which specifically regulates the

"transporting or conveying natural gas . . . by pipeline or conduit, for the public for compensation."

Thus, Pennsylvania already regulates this service if it is for the public for compensation. As

detailed in its Main Brief, Applicant's services are provided for the public, for compensation.16

Therefore, because Pennsylvania already regulates this service, no matter how informative, the

opposing intervenors' references to how other states regulate this service are inapplicable to the

case at hand.

B. Contrary To Markwest And Laurel 's Assertions, The Commission Has Exercised Its Judgment And Discretion, In Interpreting And Applying The Public Utility Code, By Allowing Light-Handed Regulation In Appropriate Situations,

In yet another stab at derailing the application, certain opposing intervenors assert that the

Public Utility Code does not authorize light-handed regulation and that the Commission has

never exercised light-handed regulation in appropriate situations in the past. That is simply not

true. As explained extensively in its Main Brief, Applicant has detailed that the Commission has

interpreted and applied the Public Utility Code to permit light-handed regulation of utilities in

appropriate circumstances.

For example, the Commission is charged, under Section 1301, 66 Pa.C.S. §1301, with

assuring that rates "shall be just and reasonable, and in conformity with the regulations or orders

of the Commission." 66 Pa.C.S. §1301. There is nothing in this statute that specifically states

Laser Main Brief at 14-24.

14

how the Commission should determine whether a rate is just and reasonable. In Popowsky v. Pa.

Pub. Util. Comm'n., the Supreme Court reiterated the longstanding legal precedent that "due

deference should be given to the views of the regulatory agency directly involved in

administering the statute in question . . . . An administrative agency's expert interpretation of a

statute for which is has enforcement responsibilities is entitled to great deference and will not be

reversed unless clearly erroneous." Under its Code powers and Popowsky, the Commission has

the authority to determine that contract or negotiated rates between sophisticated entities are just

and reasonable. As explained below, the Commission has interpreted and applied the Code as

necessary to fit the Commission's reasonable interpretation of the Code and the Code's intent.

Streamlined and relaxed regulation with regard to rates, service or terms and conditions

of service, affiliated interest filings, securities certificates, and annual reports and similar

requirements under the Public Utility Code is particularly appropriate here. Those requirements

were adopted under the traditional monopolistic form of utility regulation. That form was

adopted out of a concern for protection of customers from the monopoly positions that public

utilities enjoyed.

Here, as evidenced by the testimony, such level of protection of customers is not

required. The gathering and transportation service proposed by Applicant is purely competitive

by nature. The rates, terms and conditions of service are set by contracts negotiated at arms-

length between Applicant and the customer. Typically, a customer would be a sophisticated

business entity which can either enter into a contract with Applicant, another

gatherer, or choose to serve itself. This relaxed form of regulation has been adopted in numerous

17 550 Pa. 449, 706 A.2d 1197 (1997). 18 id. at 1203 (emphasis added). 19 Both Ardent and Allegheny filed tariffs that only contain a maximum rate to be charged for gathering and transmission service. The Commission allowed negotiated contract rates for both of these certificated carriers. 20 LNGC Stmt. 1 at 13:1-8; LNGC Stmt. 1A at 18:7-11.

15

other instances by the Commission — particularly for natural gas transportation service or for

service by LDCs to large customers who have energy alternatives.

Under the Commission's natural gas transportation service regulations, 52 Pa. Code

Chapter 60. transportation rates merely indicate a range of rates with a maximum rate allowed.

Additionally, transportation service shall be provided under a contract between the jurisdictional

natural gas utility and the customer. 52 Pa. Code §60.2(2)-(6). Negotiated rates are the norm for

LDC gas transmission services.21

As demonstrated, the Commission has the authority to exercise light-handed regulation in

the form proposed by Applicant and has done so in appropriate situations. The instant case is

certainly an appropriate situation, where service will be provided and negotiated between two

sophisticated customers and where no monopoly-served bumer-tip customer will need traditional

protections.

C. The Terms of the Settlement Are Within the Commission's Jurisdiction and in the Public Interest and Should Be Approved by the Presiding Officer.

At the hearing conducted August 23, 2010, the OTS, Silver Lake Association, protestants

Fischer and Scroggins, and Applicant identified a Stipulation to resolve the differences among

these parties. N.T. at 372:3-10. Pursuant to the terms of the Stipulation, those parties presented

their testimony and exhibits for admission into the record without cross-examination by

Applicant. After consultation, the stipulating parties agreed to a Joint Petition for Settlement

("Settlement") and filed it on September 10, 2010. N.T. at 438:7-20.

The opposing interveners have now objected to the terms of the settlement in their main

briefs. The briefs of these parties contain coordinated legal arguments, citing the same cases,

and arguing that the Commission does not have jurisdiction to approve the terms contained

21 Equitable Gas Company, LLC; The Peoples Natural Gas Company d/b/a Dominion Peoples; Columbia Gas of Pennsylvania, Inc.; and UGI Utilities, Inc. all have negotiated contract rates for gas transmission service in their tariffs.

16

within the settlement. To a large extent, these arguments do not actually cite the settlement

terms and contain conclusionary arguments which fail to explain what the settlement actually

provides. Applicant submits that the terms of the settlement are within the Commission's

jurisdiction to approve and in the public interest. Applicant's position is supported by the Public

Utility Code, which provides authority to the Commission to adopt conditions to certificates that

it deems just and reasonable and to enforce its orders, opinions of the Pennsylvania appellate

courts which have upheld settlements approved by the Commission, and the Commission's own

opinions and historical practices concerning the approval of settlements.

1. The Settlement Terms Constitute Voluntary Undertakings By

Applicant Which Are In The Public Interest.

The basis for Applicant's agreement to the settlement terms is identified in paragraph 40,

which provides: Stipulation terms 1-5 and 6-32 shall be conditions to Laser's certificate. Laser's agreement to such terms shall not be construed as evidence of or an admission that the Commission has jurisdiction over any of the subjects of the these terms but rather that it is willing, as a compromise, to honor those conditions in exercising its certificate rights and providing service as described in its testimony and exhibits. Laser agrees not to assert a lack of jurisdiction in any compliance matter before this Commission to enforce said conditions, (emphasis added).

Section 1103(a) of the Public Utility Code, 66 Pa.C.S. §1103(a); authorizes the Commission to

impose conditions on certificates of public convenience which it deems are just and reasonable.

As stated above, Applicant has agreed that the substantive provisions of the Settlement can be

conditions upon Applicant's certificate. The objecting intervenors have argued that the

Commission only has the authority to approve conditions that are within its jurisdiction. This

argument, however, mischaracterizes the terms of the settlement and ignores the Commission's

17

case law concerning the approval of conditions to certificates which constitute voluntary

undertakings by the Applicant.

The Commission has frequently approved conditions as part of the issuance of a

certificate which were voluntarily proposed by the applicants but which the Commission would

have no jurisdiction to unilaterally impose under the Public Utility Code. A recent example of

such an order is the Commission's Decision in Joint Application of UGI Utils., Inc. and PPL Gas

Utils. Corp.21 In that case the Commission issued a certificate approving the transfer by sale of

100% of the issued and outstanding stock of PPL Gas to UGI Utilities. The terms and conditions

of the settlement agreement approved by the Commission in the case are described in detail in

the Recommended Decision of Presiding ALJ Weismandel, reported at 2008 W.L. 8013813 (Pa.

P.U.C). The voluntary conditions proposed by the applicants included the following:

1. A stay-out provision which provided that no general base rate increase for PPL

Gas would go into effect for one year from the date of the Commission Order approving the

stock transfer;

2. All aspects of the acquisition premium and transaction costs would be excluded

from rates, including all tax effects.

3. PPL Gas, in its next base rate case, agreed to provide a credit representing $2.5

million on an annual basis, allocated among rate classes proportionate to any base rate revenue

award.

4. All employees of PPL Gas, with the exception of certain management employees,

would continue to be employed after the closing date at salaries or wages equivalent to the base

compensation as of the transaction closing date.

22 2008 W.L. 3925861 (Pa. P.U.C).

5. After closing, the applicants agreed to continue to perform the requirements,

obligations and liabilities under PPL Gas's existing collective bargaining agreements.

6. The applicants agreed to continue charitable contributions at no less than the

current levels for PPL Gas for a period of at least five years after consummation of the

transaction.

None of these conditions are within the Commission's jurisdiction to unilaterally impose

under the Public Utility Code. In his Recommended Decision, ALJ Weismandel determined that

these voluntary undertakings of the applicants provided affirmative benefits which supported the

issuance of a certificate approving the stock transfer. With some modifications, the Commission

adopted ALJ Weismandel's Recommended Decision.

A similar case is Joint Application of Pennsylvania-American Water Co. and Thames

Water Aqua Holdings. In that case, the Commission approved a joint application for a change

in control of Pennsylvania-American Water Company ("PAWC"). Although the Commission

had no jurisdiction to unilaterally impose the conditions voluntarily proposed by the applicants,

the Commission found them just and reasonable. The conditions proposed by the joint

applicants included foregoing claims in future rate proceedings for acquisition premiums,

transaction costs and retention bonuses designed to retain key employees and officers, enhanced

financial reporting concerning subsidiaries or affiliates not subject to the Commission's

jurisdiction, the provision of annual reports in English, the maintenance of PAWC's books and

records at a location within the United States, and an agreement to safeguard the condition of

PAWC's water shed land holdings. The Commission adopted the ALJ's recommendation that

these conditions provided a substantial public benefit which supported the issuance of a

23 202 W.L. 32163061 (Pa. P.U.C).

19

certificate approving the transaction. In that case, the Commission also rejected an additional

condition proposed by an intervener and opposed by the joint applicants concerning buffer strips

around PAWC reservoirs and funding for land trusts. The Commission denied the requested

condition on the basis that it had no authority to unilaterally impose it.24

An additional case where the Commission approved, as in the public interest, voluntary

conditions of a similar nature proposed by joint applicants is Application of Pennsylvania-

American Water Co., where the Commission approved a non-unanimous settlement but

adopted the joint applicants' proposed certificate conditions.

The difference in the Commission's consideration of certificate conditions that have been

voluntarily proposed by the applicants compared with those that are proposed by intervenors and

opposed by the applicants is demonstrated in the Commission's decision in Application of UGI

Utils., Inc., UGI Utils. Newco, Inc. and Southern Union Corp.26 In that case, UGI Utilities, Inc.

and Southern Union Corporation filed a joint application to obtain approvals necessary for UGI

Utilities, Inc. to purchase Southern Union Corporation's Pennsylvania operating division, PGE

Energy. Before the Presiding Officer, the joint applicants did not present a settlement agreement

or propose conditions to the certificate as part of their request for approval of the application.

The intervenors proposed approximately sixty conditions which they requested the Presiding

Officer to approve. In her Initial Decision, the Presiding Officer rejected all of the certificate

conditions proposed by the intervenors for a variety of reasons, including that the Commission

did not have the authority to impose some of the conditions under the Public Utility Code.

24 Interveners MarkWest (p. 22) and Laurel Mountain Midstream (p. 24) have, oddly, provided an incomplete explanation of this case in their main briefs in support of their arguments that the Commission does not have jurisdiction to adopt the conditions identified in the Laser Settlement Agreement. As explained above, the Commission adopted and relied upon the conditions proposed by the applicants and appropriate deferred from unilaterally imposing conditions over which it had no jurisdiction. These briefs only mention the Commission's rejection of a condition proposed by an intervener. 25 202 W.L. 32163061 (Pa. P.U.C). 26 206 W.L. 4794387 (Pa. P.U.C).

20

Exceptions and reply exceptions to the Initial Decision were filed by all of the parties. Several of

the parties also filed joint exceptions which proposed a settlement of the case based on the

stipulations contained in the settlement (termed "settlement exceptions"). The settlement,

however, was not unanimous. The stipulations contained in the settlement exceptions included

several proposed certificate conditions rejected by the Presiding Officer in the Initial Decision.

Although the Commission modified the proposed settlement, it approved the other conditions as

in the public interest. When the joint applicants had voluntarily agreed to the certificate

conditions rejected by the Presiding Officer in her Initial Decision, the Commission approved

them and found them to be in the public interest.

Similar to the voluntary conditions approved by the Commission in the UGI and

Pennsylvania-American Water Company cases cited above, Applicant has voluntarily agreed to

the conditions in the settlement as a compromise (Settlement fl 40), although it believes that these

conditions are within the Commission's jurisdiction to approve, see, infra. The cases cited by the

opposing intervenors concerning the Commission's jurisdiction to approve certificate conditions

present different facts and are distinguishable. Those cases present situations where the

proposed condition was not voluntarily agreed to by the applicant. In Western PA Water Co. v.

Pa. Pub. Util. Comm 'n. ,27 the Supreme Court vacated a Commission order granting a certificate

of public convenience allowing the Applicant to provide water service to additional customers

outside of its certificated area. The application had been unopposed and no hearing had been

conducted. When it approved the application, the Commission unilaterally added a condition to

the certificate that the company must agree to reasonably expand its service area in the future

when directed by the Commission. The Court vacated the Commission's order holding that its

27 471 Pa. 347, 370 A.2d 377 (1977).

21

authority under the Public Utility Law to unilaterally order extensions was not clear and no

record existed which could be reviewed with the Commission's legal conclusion. The Court

vacated the order of the Commission and remanded for further proceedings. This case is

distinguishable since the condition examined by the Court was not a voluntary undertaking by

the water company, but was unilaterally imposed, without a record, by the Commission.

2. The Objecting Parties Mischaracterize The Settlement Terms As

Requiring Action By The Commission.

The arguments of the objecting intervenors assume without explanation that the

Settlement terms will require specific action by the Commission which they argue is outside of

the Commission's jurisdiction. A review of the Settlement terms, however, indicates that each is

a voluntary undertaking requiring affirmative action by Applicant which generally does not

involve actions by the Commission or its Staff.

The initial six terms of the Settlement address Operations and Safety in the construction

and operation of Applicant's gathering system. These paragraphs address compliance with the

pipeline safety provisions of 49 CFR Part 192 in the construction and operation of the pipeline.

In several of these paragraphs, Applicant agrees to comply with existing requirements

concerning construction and materials contained in 49 CFR Part 192 (paragraphs 1 and 4),

registration with PA One-Call (paragraph 2), marking the pipeline with warning signs (paragraph

3), and complying with existing environmental and noise requirements applicable to compressors

(paragraph 5). These paragraphs place no requirements on the Commission or its Staff.

Paragraph 6 describes procedures that Applicant has unilaterally agreed to implement

prior to exercising eminent domain. Applicant agrees that it would initiate eminent domain only

as a matter of last resort after all other reasonable options are not feasible. Applicant agrees not

to condemn property where the resulting easement would require the abandonment or destruction

22

of existing structures. These procedures do involve the Commission in that Applicant agrees to

file a letter with the Commission Secretary in advance of commencing an eminent domain action

notifying the Commission and explaining why eminent domain is necessary. (Paragraph 6(b)).

Paragraph 6(d) does involve the Commission in that Applicant agrees, upon written request of a

landowner, to participate in a non-binding PUC mediation procedure to be commenced at least

30 days before exercising any eminent domain right. Contrary to the arguments contained in the

objecting intervenors briefs, these provisions are voluntary undertakings by Applicant which

would precede Applicant's unlikely and rare exercise of eminent domain authority under Section

1511 of the Business Corporation Law and the Eminent Domain Code. This paragraph does not

require the Commission to assume jurisdiction over eminent domain proceedings commenced by

Applicant.

Settlement paragraphs 8-32 identify landowner protections and easement terms which

will be included by Applicant in any easement for the pipeline or any related facilities, including

but not limited to any feeder or lateral lines that may be developed under Laser's certificate of

public convenience, which are entered into on or after August 23, 2010. These paragraphs

comprehensively respond to testimony presented by witnesses at the public input hearings

concerning the size and use of easements, construction of the pipeline within the easement,

incidental damage from pipeline construction and Applicant's responsibility to the landowner for

9 St

compensation and use of the easement. Neither the Commission, nor its staff, is identified in

any of these paragraphs, and no responsibilities are assigned to them. The procedures identified

in paragraph 6 only apply to Applicant and would not affect the exercise of eminent domain by

any other public utility. As explained later in this reply brief, paragraph 6 is not intended to, and

28 Citations to the public input hearing transcripts to witnesses testifying on these issues are contained in footnotes on pages 40-47 of Laser's Main Brief.

23

does not require the Commission to exercise jurisdiction over Applicant's exercise of eminent

domain authority under the Business Corporation Law or Eminent Domain Code. See Argument

C(5), infra.

The remaining paragraphs of the Settlement (paragraphs 33-43) address the agreements

between the settling parties on specified issues and the standard Commission settlement

procedures. None of these paragraphs identify the Commission or its staff or impose

responsibilities upon them.

3. Approval Of The Settlement Terms Fall Within The Commission's Jurisdiction Over Utility Service Pursuant To Section 1501 Of The Public Utility Code.

Applicant submits that the Commission has jurisdiction over the terms of the Settlement

as a result of its jurisdiction over public utility facilities and service pursuant to Section 1501 of

the Public Utility Code, 66 Pa.C.S. §1501. Public utility facilities and service are broadly

defined in Section 102. Facilities are defined as:

All the plant and equipment of a public utility, including all tangible and intangible real and personal property without limitation, and any and all means and instrumentalities in any manner owned, operated, leased, licensed, used, controlled, furnished or supplied for, by or in connection with the business of any public utility, (emphasis added)

Service is also broadly defined in that section:

Used in its broadest and most inclusive sense, includes any and all acts done, rendered or performed, and any and all things furnished or supplied, and any and all facilities used, furnished or supplied by public utilities,... in the performance of their duties under this part to their patrons, employees, other public utilities and the public. . . . (emphasis added)

Section 1501 addresses the character of public utility service and facilities and states in

pertinent part that "(e)very public utility shall furnish and maintain adequate, efficient, safe and

reasonable service and facilities, and shall make all such repairs, changes, alterations,

24

substitutions, extensions and improvements in or to such service and facilities as shall be

necessary or proper for the accommodation, convenience and safety of its patrons, employees

and the public." The Commonwealth Court has interpreted these sections and decided that the

Commission's jurisdiction over public utility service is confined not only to the distribution of

the primary utility service, but also includes any and all acts related to that function, including

the maintenance practices the public utility undertakes with its facilities in a right-of-way,29 the

trimming of trees by an electric utility in a township with a shade tree ordinance, and the

provision of a conditioned electric service as an option for electric utility customers. The

Commission has held that its authority over the reasonableness of a public utility's service to the

public provided jurisdiction for the Commission to consider whether a gas utility had damaged

and inadequately repaired a complainant's driveway and sidewalk when it repaired or replaced a

gas line in front of the residence.

Applicant submits that the Commission has jurisdiction to approve the Settlement terms

as a result of its broad authority over public utility service and facilities under the Public Utility

Code. All of the terms of the Settlement address acts done, rendered, or performed by Applicant

to provide service, or facilities that will be used by Applicant to provide a public utility service.

The broad definitions of facilities and service contained in Section 102, and the Commission's

authority to enforce the provision of safe and adequate service in Section 1501, provide the

Commission with independent jurisdiction to approve these conditions as part of Applicant being

certificated to provide public utility service in Pennsylvania. These terms apply only to

Applicant and do not apply to later applicants for similar authority. Applicant submits that these

29 West Penn Power Company v. Pa. Pub. Util. Comm 'n., 578 A.2d 75 (Pa. Cmwlth. 1990). 30 PECO Energy Company v. Township of Upper Dublin, 922 A.2d 996 (Pa. Cmwlth. 2007). 31 Popowsky v. Pa. Pub. Util. Comm'n., 653 A.2d 1385 (Pa. Cmwlth. 1995). 32 Prosser v. Columbia Gas of Pennsylvania, Inc., 206 W.L. 6611443 (Pa. P.U.C).

25

provisions of the Public Utility Code, and the Commonwealth Court decisions that have

interpreted them, provide the Commission with jurisdiction to approve all of the terms contained

in the Settlement.

4. The Commission Has Jurisdiction Under The Public Utility Code

To Enforce The Settlement Agreement.

Section 502 of the Public Utility Code, 66 Pa.C.S. §502, authorizes the Commission to

enforce its orders either in administrative or judicial proceedings. Should the Commission

approve the Settlement Agreement, Section 502 provides the Commission with jurisdiction to

enforce the Settlement Agreement should issues later arise concerning Applicant's compliance

with its requirements. The objecting intervenors have argued that the Commission would not

have jurisdiction to determine the eminent domain, easement and landowner rights, and

environmental conditions of the Settlement. Applicant submits, however, that the settlement

terms do not require the Commission in an enforcement action to act outside of its jurisdiction

and that if necessary, compliance questions could be referred to local courts or other agencies as

part of any enforcement proceeding.

Applicant submits that a review of the 43 paragraphs of the Settlement indicate that

enforcement of these paragraphs would not require the Commission to exercise jurisdiction

outside of its enforcement authority under Section 502. Each of the paragraphs requires

affirmative actions by Applicant, compliance with which could be determined by the

Commission without considering issues of eminent domain, easements and property rights, or

environmental issues. To the extent that a compliance issue could be raised in a settlement

enforcement proceeding which involved the jurisdiction of a local court or another agency,

Applicant believes that those issues could be referred to the court or agency with primary

jurisdiction for a determination which then could be incorporated as part of the enforcement

26

proceeding if necessary. In that circumstance, the procedure recognized by the Supreme Court in

Elkin v. Bell Telephone Co. o f P a . ^ could be used to determine Applicant's compliance. In that

case, the Supreme Court held that service or regulatory issues raised in judicial complaints

against public utilities could be determined in the first instance by the Commission, the agency

with the primary jurisdiction, and that determination could be referred to the court for use in the

action for negligence or damages. In the unlikely circumstance that a determination within the

jurisdiction of another agency was required in an action to enforce the Settlement in this case.

Applicant submits that a procedure similar to the one identified in Elkin would be possible. The

issue could be referred to a local court or agency with primary jurisdiction and then included as a

determination in the Commission enforcement proceeding.

Alternatively, Applicant submits that a decision of the Commonwealth Court indicates

that the Commission could enforce terms of the settlement without referral to a court or other

agency. That Court has held that a voluntarily agreed-to term or condition in a settlement with

an agency is valid and enforceable even if the agency lacked jurisdiction to impose the term or

condition unilaterally. In Global Eco-Logical Servs., Inc. v. Dep't of Envtl. Prot.,34 the

Department of Environmental Protection ("DEP") and a permittee ("Atlantic") entered into a

consent order and agreement ("CO&A") to resolve prior litigation over the operation of a waste

transfer facility. The CO&A contained an "automatic revocation" provision authorizing DEP to

revoke the permit for any violation of the CO&A. As decided by the Environmental Hearing

Board ("EHB") in previous cases, DEP lacked jurisdiction under the Solid Waste Management

Act to impose such an automatic revocation provision in a permit. However, Global and DEP

33 491 Pa. 123,420 A.2d 371 (1980). 34 789 A.2d 789 (Pa. Cmwlth, 2001).

27

voluntarily agreed to the automatic revocation provision in the CO&A to end their litigation, and

the CO&A was approved by the EHB.

After Global failed to pay a penalty as required by the CO&A, DEP issued a letter

invoking the automatic revocation provision that DEP could not otherwise unilaterally impose.

Global appealed that determination to the EHB and argued that the provision was void ab initio

because DEP did not have jurisdiction to impose that type of condition pursuant to the EHB's

prior rulings.

The EHB disagreed and held that there is a difference between DEP's authority to impose

certain permit conditions unilaterally and parties voluntarily agreeing to terms and conditions in

a settlement agreement that an agency otherwise could not require:

A negotiated agreement with [DEP] is somewhat different than a direct action under a statute, such as the issuance of a permit or the assessment of a civil penalty. The contours of [DEP's] authority in the latter instances are explicitly defined by statute. In contrast, a consent order and agreement, is "merely an agreement between the parties. It is in essence a contract binding the parties thereto." Commonwealth of Pennsylvania v. United States Steel Corp., 15 Pa. Cmwlth. 184, 325 A.2d 324, 328 (1974). As such, its enforceability is governed by principles of contract law, Mazzella v. Koken, 559 Pa. 216, 739 A.2d 531, 536 (Pa. 1999), subject to any applicable statutory or constitutional limits on the enforcement of the contract. Accordingly, we should only modify its terms, which were negotiated by the parties, with great reluctance. See U.S. Steel Corp. (a court has no authority to modify or vary the terms of a consent decree absent fraud, accident or mistake).

Although the [EHB] disfavors automatic action by [DEP], after reviewing the [CO&A] we can divine nothing inherently illegal about the term in a consent agreement which provides for the automatic revocation of [Atlantic's Permit and Surety Bond.] Permitting decisions or the assessment of civil penalties are essentially unilateral actions on the part of [DEP], which is required to consider the unique circumstances of each case in order to reasonably exercise it [sic] discretion. In contrast, the terms of the [CO&A] are mutually assented to by both parties who together decided that the penalty was appropriate in the event [Atlantic] failed to comply with the civil penalty payment schedule. In

28

reaching these terms, [DEP] was only constrained by the provisions of Section 602 of [the SWMA], which provides that orders of [DEP] must be "necessary to aid in the enforcement of the act." 35 P.S. §6018.602. Once [DEP] exercises its discretion to determine that a consent agreement is the proper enforcement tool to utilize in a certain situation, there is nothing which would preclude it from agreeing with an appellant that certain specific acts will result in the revocation of a permit.

Global, 789 A.2d at 795-96. On appeal, the Commonwealth Court adopted this reasoning

verbatim. Id. at 796.

The lessons of Global apply here. Applicant has voluntarily agreed to certain terms to

settle the litigation, and those conditions will become part of the certificate of public

convenience. Even assuming the Commission could not unilaterally impose certain terms and

conditions on Applicant there is nothing inherently illegal about them, and the only question for

the Commission is whether the overall settlement and the resulting certificate are in the public

interest. The consent order and agreement in Global is similar to a settlement before the

Commission. Approval of a settlement by the Commission represents an agreement by the

Agency and settling parties on how the matter should be resolved. As in Global, the agreement

of the parties provides the Commission with jurisdiction to enforce the terms of the settlement.

5. The Settlement Does Not Require The Commission To Exercise

Authority Over Applicant's Use Of Eminent Domain.

The objecting intervenors argue that paragraph 6 of the Settlement Agreement requires

the Commission to exercise authority over Applicant's use of eminent domain. Applicant

disagrees that paragraph 6 prohibits Applicant's exercise of eminent domain without the

Commission's permission. Paragraph 6 describes procedures that Applicant has unilaterally

agreed to implement prior to exercising eminent domain. The procedures that Applicant has agreed to include initiating eminent domain only as a matter of last resort when all other options

are not feasible, not condemning property where the resulting easement would require the

29

abandonment or destruction of existing structures, providing advance notice to the Commission

Secretary of commencing an eminent domain action and providing an explanation, and agreeing

to participate in a non-binding PUC mediation procedures upon the written request of a

landowner prior to exercising any eminent domain right. Contrary to the arguments contained in

the objecting intervenors briefs, paragraph 7 does not require the Commission to exercise

authority over Applicant's use of eminent domain. After it has complied with the voluntary

undertakings identified in paragraph 6, Applicant may then exercise the eminent domain

authority granted to public utility corporations under Section 1511 of the Business Corporation

Law of 1988, 15 Pa.C.S. §1511, and the Eminent Domain Code to initiate eminent domain

proceedings in the Court of Common Pleas. Paragraph 6 does not provide that Applicant must

request the Commission's permission before initiating condemnation procedures. At the hearing,

Superior Pipeline's counsel asked Applicant CEO Karam about Applicant's testimony statement

(and stipulation term) whether it would only use eminent domain as a matter of last resort after

all other reasonable options, including re-routing, were not feasible. Mr. Karam testified that

Applicant would not be requesting the Commission to make a determination prior to its exercise

of eminent domain if there were no other feasible options. (N.T. at 413; 2-15). Settlement

paragraph 6 does not require the Commission to exercise authority over Applicant's use of

eminent domain but only requires Applicant to implement procedures it has agreed to prior to

initiating eminent domain proceedings.

6. The Settlement Does Not Require The Commission To Exercise

Jurisdiction Over Easements And Right-Of-Way Agreements.

The objecting intervenors argue that the settlement paragraphs 8 to 32 require the

Commission to exercise jurisdiction over easements and right-of-way agreements. Settlement

paragraphs 8-32 identify landowner protections and easement terms which Applicant has

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voluntarily agreed to include in any easement for the pipeline or related facilities. The opposing

intervenors argue that these Settlement paragraphs provide the Commission with jurisdiction

over private contracts which would include jurisdiction to adjudicate disputes concerning the

contracts, including the jurisdiction to award damages. These arguments are unsupported by the

Settlement Agreement.

Paragraph 7 of the Settlement requires that the landowner protections and easement terms

be included in the easements. Section 502 provides authority for the Commission to enforce

prior orders including those approving settlement agreements. Any Commission enforcement

proceeding to enforce these paragraphs would involve a determination that Settlement

paragraphs 8-32 were included in any easements that Applicant had entered into for the pipeline

or related facilities on or after August 23, 2010. There is no language in the Settlement requiring

the Commission to enforce the individual terms or paragraphs of the easement. If a dispute

existed between Applicant and a landowner concerning compliance with the individual easement

paragraphs, the Court of Common Pleas would have jurisdiction to adjudicate disputes regarding

the validity, enforceability and potential breach of the easement terms, including the jurisdiction

to award damages. The Settlement contains no terms that would place that responsibility upon

the Commission.

7. The Settlement Does Not Require The Commission To Exercise

Jurisdiction Over Environmental Issues.

The opposing Intervenors argue that Settlement paragraphs 15, 16, 17, 18 and 21 require

the Commission to exercise jurisdiction over environmental issues which are outside of the

Commission's jurisdiction. These paragraphs generally require Applicant to conduct pre and

post construction testing of water and soil on the landowners' property and provide copies of the

test results to the landowner and to employ standard construction site erosion controls as adopted

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by Pennsylvania regulatory agencies. None of these paragraphs require any actions by the

Commission or its Staff.

Paragraph 7 of the settlement requires Applicant to include these paragraphs in any

easement for the pipeline or related facilities entered into on or after August 23, 2010. A

proceeding before the Commission to enforce these terms would only encompass whether the

paragraphs had been included in the easements entered into on or after that date. There is no

paragraph in the Settlement that requires the Commission to enforce the environmental

requirements of these paragraphs. Applicant believes that if necessary, specific enforcement of

these easement terms would be either in the Court of Common Pleas or in the Department of

Environmental Protection. The opposing Intervenors are incorrect that the inclusion of these

paragraphs in the settlement requires the Commission to exercise jurisdiction over environmental

issues outside of its jurisdiction.

8. The Commission Has Jurisdiction To Approve Non-Unanimous Settlements.

Intervenors MarkWest (p. 24-5) and Laurel Mountain (p. 26-7) both argue that the

Commission does not have authority to approve a non-unanimous settlement. Both briefs rely on

an incomplete citation of the Commonwealth Court's decision in ARIPPA v. Pa. Pub. Util.

Comm 'n 3 5 Both briefs cite dicta in the Court's opinion that suggest that non-participating parties

in a settlement may be left out of the decision making process that ultimately resolves the case.

The Court, however, did not resolve the issue of the Commission's jurisdiction over non-

unanimous settlements, and instead examined whether the non-unanimous settlements in that

case violated the due process rights of the non-participating parties, specifically, whether those

parties had adequate notice and opportunity to be heard concerning the issues in the settlement.

35 792 A.2d 636 (Pa. Cmwlth. 2002).

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In this case, the non-participating parties had both advance notice of the settlement and

an opportunity to cross-examine Applicant's witnesses on the settlement issues. The stipulation

discussed at the hearing which became the basis for the Joint Petition for Settlement was

provided to the other parties and discussed in a conference call on Friday prior to the hearing.

N.T. at 357. At the hearing, the non-stipulating intervenors stated that they had no cross-

examination for Applicant's witnesses on the Stipulation and suggested that it be viewed as a

Joint Petition for Settlement. Those intervenors stated that their issues with the Stipulation were

legal ones which would be addressed in briefs. The non-stipulating intervenors waived cross-

examination of Applicant's witnesses on the settlement document and indicated that they would

brief the legal issues. N.T. at 372-77.

Applicant submits that the non-participating parties received all the due process

protections identified in the ARIPPA decision. They received advance notice and a copy of the

stipulation prior to hearing and a copy of the nearly-identical final stipulation at the hearing.

These parties were provided with an opportunity to cross-examine Applicant's witnesses on the

stipulation and declined, preferring to present their issues in their briefs. Applicant submits that

the Commission has jurisdiction to approve this non-unanimous settlement.

D. Contrary To Scroggins' Main Brief, The Commission Has No Authority Over Siting Of Applicant's Gathering Lines.

The Commission does not engage in siting for the intrastate gas lines of local distribution

companies, buried electric and telephone lines, and does not site water or sewer utility lines. The

Commission only reviews the siting of certain electric transmission lines pursuant to Section

1511(c) of the Business Corporation Law ("BCL"), 15 Pa.C.S. §1511(c), which requires

Commission approval for the siting and condemnation of property for aerial electric or telephone

lines outside of a public right-of-way. There is no similar legislative requirement for the

33

Commission's siting of natural gas gathering pipelines. To impose regulation over Applicant's

siting of its intrastate gathering and transmission lines and related facilities would violate current

law and conflict with the statutory scheme and express terms of Section 1511 of the BCL that

requires siting regulation by this Commission only for aerial electric and telephone lines outside

of the public way.

Under statutory construction in Pennsylvania, the inclusion of one particular item (in this

case, Commission siting review of aerial electric and telephone lines) evidences a legislative intent

that other utility facilities are not included.36 Therefore, it must be concluded that the Legislature

did not intend to include Commission regulation over the siting of intrastate pipelines. Stated in a

slightly different manner, it must be concluded that, because express and specific legislation was

required to include Commission regulation over aerial telephone and electric distribution lines, it

similarly requires express and specific legislation to include Commission jurisdiction over

intrastate pipelines. Because the Legislature did not include intrastate pipelines, the Commission

has no authority to regulate Applicant's siting of its pipelines.

Moreover, as explained more fully in Applicant's Main Brief, the 32 substantive

paragraphs of the Joint Petition for Settlement, address most, if not all, of the siting concerns

raised by Public Input Testimony and the testimony of the participants to this proceeding,

including the specific concerns of OTS37 and Vera Scroggins.38 Specifically, the Joint Petition

addresses typical siting issues such as safety, landowner issues (including eminent domain), and

compliance with all environmental regulations and any and all local, state and federal laws

Specifically, under the principle expressio unius est exclusio allerius, the mention of one thing in a statute implies the exclusion ofthe things not mentioned. Commonwealth v. Spotz, 552 Pa. 499, 716 A.2d 580 (1998). 37 OTS Statement No. 1 (Gruber Direct) at 5:20-22; 6:1-16. 38 Scroggins Statement No 1 (Scroggins Direct) at 5:12-19; 9:23; Scroggin's Main Brief at 24-36.

34

including, but not limited to those applicable to the environment, insurance, the land, the air, the

water, and to pipelines.

Because the Commission lacks jurisdiction over siting of natural gas lines (it does not do

so for Local Distribution Companies) and thus has no current siting regulations that apply to the

gathering pipelines and related facilities of Applicant, and Applicant has nonetheless agreed in

the Joint Petition to address voluntarily by implementing certain best practices to address siting

concerns raised by the Parties to this proceeding, Your Honor and the Commission cannot, and

in any event should not, impose any siting requirements on Applicant's Certificate of Public

Convenience.

E. PIOGA's Attempt To Introduce Extra-Record Evidence At The Briefing Stage Should Be Disregarded.

On page 13 of its Main Brief, PIOG A attempts to present and rely on evidence not in the

record of this proceeding. Specifically, PIOGA states:

Applicable industry practice is that landowners have agreements with producers and marketers, and marketers have agreements with producers and end-users - and producers have agreements with the midstream pipelines-with allocation of the producer's payment of the pipeline's rates a matter of negotiation between the landowner/producer, landowner/marketer, marketer/producer and marketer/end-user, as the case may be.

PIOGA Main Brief at 13, n.34 (citing to an article written by Timothy Consadine). Mr. Consadine

is neither a witness in this case nor did PIOGA provide this testimony on the record.

It is an indisputable fact of administrative agency law and procedure that, in order to

withstand appellate review or scrutiny, the Commission's (or other administrative agency)

finding must be supported by substantial evidence in the record. This legal principle constrains

Administrative Law Judges and the Commission to rely upon evidence contained in the record in

39 AT&Tv. Pa. Pub. Util. Comm'n., 558 Pa. 290, 737 A.2d 201 (Pa. 1999); George v. Pa. Pub. Util. Comm'n., 735 A.2d 1282 (Pa. Cmwlth. 1999).

35

reaching their findings of fact and conclusions of law. It would not be fair to either the

Commission or other parties to a proceeding if an Administrative Law Judge's Recommended

Decision, which must be based upon evidence in the record, could be challenged by a party by

citing or relying upon additional information or evidence which is not in the record.40 The

Commission has routinely declined to entertain extra-record briefing materials or references. Id.

Thus, PIOGA's inclusions at page 13 of its Main Brief as well as footnote 34 should be

disregarded.

In the event PIOGA in its reply brief repeats its illegal practice of presenting or adducing

facts not of record, any such attempt should be disallowed and such materials disregarded. There

was plenty of opportunity to adduce facts on the record in this case.

F. OCA's Generic Concerns Regarding The Status Of Other Gatherers And Their Operations Is Not The Proper Subject Of This Proceeding, And Should Not Delay Applicant's Application, Which Should Be Determined Based Upon Its Own Merits and Record.

The OCA's conceptual concerns regarding the public utility status or not of other

"gatherers" is of no moment in this proceeding and determination. This proceeding is about the

public utility status of this applicant, this record, and the specific services Applicant proposes to

provide to the public as a pipeline utility. It is not about the services that other gatherers provide,

and whether those services are public utility services subject to the regulation of the

Commission. Those are issues for another day and involve legal and factual determinations

regarding other facts and circumstances. Those conceptual concerns by OCA should neither

delay nor impact the determination of Applicant's record and merits.

40 Mr. and Mrs. Michael J. Trucco. 97 Pa. P.U.C. 100; 2002 WL 31058115 (Order entered March 29, 2002) (photocopy of a police report attached to Complainant's main brief stricken because it was not included in the record).

36

OCA does state in its brief that if Applicant is a public utility, the settlement conditions

should apply. That is all that is needed to be done in this proceeding and tangential issues

regarding other gatherers are entirely separate matters.

As stated in Section A. 3. above, concerns that all gatherers will be bound by a finding

that Applicant's services are public utility services is unfounded as each gatherer may have its

unique set of facts and circumstances that bear on the public utility status question. Applicant's

services are unique to Applicant and thus cannot bind other gatherers with different facts, who

hold themselves out differently, operate differently, or serve primarily affiliated or alter-ego

customers, or may serve a different territory than that sought by Applicant. Applicant, in the

Joint Petition, has enumerated numerous conditions to be applied to its certificate. These

conditions do not apply to any other gatherer. In sum, the proceeding at hand is inappropriate for

such broader determinations.

Joint Application for Settlement at 16,1(34.

37

HI. CONCLUSION

For all ofthe foregoing reasons, and for those set forth in Applicant's Main Brief, LNGC

respectfully requests that Administrative Law Judge Susan D. Colwell and the Pennsylvania

Public Utility Commission: 1) approve the Joint Petition for Settlement without modifications;

2) issue a certificate of public convenience authorizing LNGC to provide gas gathering and

transmission service in the applied-for territory with the conditions appearing in the settlement;

3) apply or recommend light-handed regulation to LNGC's gas gathering and transmission

services; and, 4) issue all other approvals appropriate, customary, or necessary in order to carry

out the transactions described in the Application.

Respectfully submitted,

Thomas J. Sniscak William E. Lehman Hawke McKeon & Sniscak LLP 100 North Tenth Street P.O.Box 1778 Harrisburg, PA 17105-1778 (717)236-1300 tjsniscak@hmslegal.com welehman@hmslegal.com

Daniel P. Delaney, Esquire George A. Bibikos, Esquire K&L Gates LLP 17 North Second Street, 18th Floor Harrisburg, PA 17101-1507 (717-231-4516

Counsel for Laser Northeast Gathering Company, LLC

Dated: October 12, 2010

38

CERTIFICATE OF SERVICE

I hereby certify that I have this day served a true copy ofthe foregoing Reply Brief upon the

parties listed below, and in accordance with the requirements of 52 Pa. Code § 1.54 (relating to

service by a party).

BY FIRST CLASS MAIL

Daniel P. Delaney, Esquire George A. Bibikos, Esquire K&L Gates LLP 17 N. Second St., 18,h Floor Harrisburg, PA 17101-1507 Laser Marcellus Gathering Co., LLC

Brian J. Knipe, Esquire Buchanan Ingersoll & Rooney, PC 17 North Second Street, 15th Floor Harrisburg, PA 17101 MarkWest Liberty Midstream & Resources, LLC

James A. Mullins, Esquire Office of Consumer Advocate 555 Walnut Street Forum Place, 5th Floor Harrisburg, PA 17101-1921

Johnnie E. Simms, Esquire Adeolu Bakare, Esquire Pennsylvania Public Utility Commission Office of Trial Staff P.O. Box 3265 Harrisburg, PA 17105

Todd S. Stewart, Esquire Hawke, McKeon & Sniscak LLP P .O.Box 1778 Harrisburg, PA 17105 ETC Northeast Pipeline, LLC

Brian J. Clark, Esquire Michael T. Killion, Esquire Buchanan Ingersoll & Rooney, PC One S. Market Sq., 213 Market Street Harrisburg, PA 17101 Laurel Mountain Midstream, LLC

Michael D. Fiorentino, Esquire 42 East Second Street Media, PA 19063 Silver Lake Association

Kevin J. Moody, Esquire Eckert Seamans Cherin & Mellott, LLC 213 Market Street, 8th Floor Harrisburg, PA 17101 Independent Oil & Gas Association of PA

Audrey J. Daly, Esquire Elizabeth U. Witmer, Esquire Saul Ewing LLP 1200 Liberty Drive, Suite 200 Wayne, PA 19087 Superior Appalachian Pipeline, LLC

John H. Isom, Esquire Post & Schell, P.C. 17 North Second Street, 12th Floor Harrisburg, PA 17101-1601 DTE Pipeline Company and BlueStone Pipeline Co. of PA, LLC

William C. Fischer Forensic Consulting 20159 State Route 167 P.O. Box Box 3265 Brackney, PA 18812

Deborah Goldberg, Esquire Megan Klein, Esquire 156 William Street, Suite 800 New York, NY 10038 Earthjustice

c-.' £? ^

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Co

Scott J. Rubin, Esquire 333 Oak Lane Bloomsburg, PA 17815-2036

On Behalf of:

Vera Scroggins 7481 Laurel Lake Road Brackney, PA 18812

>th Dated this 12[n day of October 2010

T V O ^ - ^ —̂ • "OiX-'sjC^iX

Thomas J. Sniscak