Almost a year after Sunoco started pumping natural gas liquids through the controversial and still unfinished Mariner East pipelines, and less than two months after Gov. Tom Wolf publicly ruled out stopping the lines, seven residents of Chester and Delaware counties are preparing to argue in court that the Public Utility Commission should halt the project.
The plaintiffs will appear before Elizabeth Barnes, a PUC administrative law judge, in a West Chester courtroom on Oct. 23 and 24 to try to convince her that the pipeline project remains a danger to public safety, and that Sunoco has failed to help the public understand how to ensure their safety if there is a leak or explosion.
It could be the last chance for pipeline opponents to stop the project, which has been plagued with technical, environmental and legal problems since it started construction in February 2017.
It was temporarily shut down once by Pennsylvania’s Environmental Hearing Board and twice by the PUC — including once by Barnes, following the appearance of sinkholes in West Whiteland, Chester County in May 2018. But it has always been allowed to restart. Sunoco admitted in February 2019 that it made mistakes during construction, and pledged to put them right, but has insisted throughout that the project meets all state and federal regulatory requirements.
The plaintiffs’ attorney, Michael Bomstein, said his clients believe that their safety, and that of their neighbors, is being put at risk in part by the eight-inch Mariner East 1 line, a 1930s-era pipe that once carried gasoline across Pennsylvania from east to west, and was repurposed in 2014 to carry highly volatile natural gas liquids in the opposite direction.
They are also worried by Sunoco’s use of a repurposed 12-inch line as part of the Mariner East network until its new 16- and 20-inch lines are complete, Bomstein said. Both of the repurposed lines are “dangerously corroded and should be shut down,” he said.
The PUC’s Bureau of Investigation and Enforcement concluded that a leak of natural gas liquids from Mariner East 1 at Morgantown, Berks County in April 2017 was caused by corrosion in the 1930s-era pipe. In September 2018, the federal Pipeline and Hazardous Materials Safety Administration said that the 12-inch line leaked 33,000 gallons of gasoline into a creek near Philadelphia. The line, installed in 1937, had leaked at least twice before, records show.
Asked why his clients are pursuing their case some 10 months after Sunoco started pumping NGLs across Pennsylvania, Bomstein said they remain convinced that Mariner East threatens public safety.
“They believe that the Mariner pipelines should not be operating in densely populated areas,” he said. They also believe, he said, that Sunoco’s track record shows it “has not and cannot furnish safe, adequate and reasonable service, as required by statute.”
One example, he said, was that Sunoco’s printed advice to residents is to walk away from a pipeline leak — but there is no provision for people who can’t walk. Bomstein cited a statement by John Zurcher, a pipeline expert who testified for Sunoco during hearings last year on a complaint brought by state Sen. Andy Dinniman against the pipelines. “I acknowledged that it does not say that if you’re immobile for any reason what you should do,” Zurcher said, according to a court transcript.
Bomstein, who is working the case pro-bono, said his clients were not available for comment. They are: Meghan Flynn and Rosemary Fuller of Middletown Township; Michael Walsh of Thornbury Township; Nancy Harkins of Westtown Township; Gerald McMullen of West Whiteland Township; Caroline Hughes of East Goshen Township; and Melissa Haines of Aston Township.
A long road
The hearings will be the culmination of 11 months of legal filings resulting in 195 public documents posted on the PUC’s docket, and of more than three years of public meetings, protests and court battles that have also involved the Department of Environmental Protection, local officials, the federal pipeline regulator PHMSA, state lawmakers, school districts, townships, and several environmental nonprofits.
The hearings take place as the PUC conducts a wide-ranging review of pipeline-safety regulations – an exercise that has the potential to address some of the critics’ concerns.
For its part, Sunoco has repeatedly rejected the plaintiffs’ arguments that its pipelines represent a risk to public safety.
“To shut down the transportation of HVLs on SPLP’s Mariner East 1 and Mariner East 2 pipelines, petitioners must prove that there is something specific to them that creates a clear and present danger to the public. There is no such evidence,” lawyers for the company said in an 81-page brief filed in December 2018.
It said the plaintiffs are “theorizing about a hypothetical absolute worst-case scenario” in raising concerns about leaks and explosions, and had presented no evidence of an imminent safety hazard.
In its defense, the company cited an earlier denial by the PUC of an action by Dinniman, who asked for Mariner East 1 to be shut down in West Whiteland Township, where the pipeline project has been plagued by sinkholes and unstable geology.
Despite the issues, there was no “new evidence” to support a finding that the continued operation of ME1 presented a clear and present danger to the people of West Whiteland in that case, the PUC wrote in December 2018.
On Oct. 9, two weeks before the hearings were due to start, Sunoco asked Judge Barnes to prevent the plaintiffs from including testimony by lay witnesses who, the company said, would present “inadmissible, irrelevant, immaterial, and/or unduly repetitive” statements to the court. The company argued that those witnesses are not qualified as experts to speak about matters such as the impacts of highly volatile liquids transportation, and should be barred from expressing their opinions.
Eric Friedman, one of 36 witnesses who is due to speak at the hearings, said Sunoco’s request was trying to stop them “from offering public testimony about their safety concerns, the economic harms they and their community have suffered, and the complete lack of any credible plan to protect the public…”
Bomstein, in a reply to Sunoco’s request posted to the PUC’s docket on Oct. 16, urged the judge to reject the company’s call for the witnesses’ testimony to be time-limited, and argued that Pennsylvania law allows lay witnesses to express opinions, just not expert opinions.
Whether any of the testimony is duplicative, as argued by Sunoco, is for the judge to decide during the hearing and not before, Bomstein said.
He noted that Judge Barnes has already warned the parties against repetitive or duplicative testimony. “Why the judges needs to be reminded of her own ruling is not explained,” Bomstein wrote.
Other interested parties
Meanwhile, support for the plaintiffs has come in the form of interventions in the case from some townships, at least two school districts, one county, and two lawmakers on both sides of the aisle. Range Resources, the leading gas driller in southwest Pennsylvania, intervened to support Sunoco, arguing that the continued operation and construction of the pipelines don’t constitute an “emergency,” as argued by the plaintiffs.
Downingtown School District, for example, has at least five schools within a “blast zone” which it said might extend more than 2,000 feet from the pipelines. In a January 2019 filing, the district urged the PUC to shut down the pipelines unless state and federal regulators confirm them to be safe, and said the PUC should require Sunoco to develop a “mass early warning system” to be used by the schools in the event of a pipeline leak.
Among the townships supporting the plaintiffs, Thornbury in Delaware County said it had “virtually no power” to act on behalf of its residents’ safety because the PUC has given public utility status to the Mariner East project, leaving major decisions on routing and safety in the hands of the state regulators and the company.
Thornbury’s Board of Supervisors chairman, James Raith, said the township had repeatedly asked the PUC to conduct safety reviews of the pipeline but had received no response, and so was intervening in the case in support of the plaintiffs.
State Sen. Tom Killion (R-Chester, Delaware), also intervened, calling on the PUC to require Sunoco to develop a mass early-warning system of any leak in the two counties; to prepare an emergency-response plan for the public and local officials; and to hire an independent expert to study the remaining life of the eight- and 12-inch lines.
Sunoco says it has prepared some 2,000 first responders in Pennsylvania to deal with any pipeline emergency through its Mariner Emergency Response Outreach Program. It has also distributed printed flyers to residents near the pipeline route advising them on emergency procedures.
After this month’s hearings, Barnes will separately hear expert witnesses, but not until July of next year. The judge provided the extra time to allow for a large number of experts and the discovery that their testimony will require, Bomstein said. He estimated that it could be the end of 2020 before the full commission rules on the case.
“Because it is a big, complicated case, the judge believed that this amount of time was necessary,” he said. The plaintiffs “would love for the case to resolve sooner but it probably is not realistic.”