Cumberland County residents’ day in court over safety concerns with Sunoco’s Mariner East pipelines has been delayed, but it could be bolstered by a rush of activity from state legislators and investigatory agencies.
Lower Frankford Township homeowner Wilmer Baker, who filed his case last fall with the state’s Public Utility Commission, was scheduled for a hearing on March 28 before a state administrative law judge.
But that hearing has been pushed back to July 17 and 18, after Sunoco made a filing last week saying it would need more time to prepare if Baker was going to be allowed to call witnesses, which he intends to do.
However, a rush of activity from state officials could change the course of the pipeline debate by then.
Last week, Attorney General Josh Shapiro announced his office was engaging in a criminal investigation of Sunoco in conjunction with the Delaware County District Attorney’s office.
And on Tuesday, Baker spoke alongside other affected property owners at a rally in the Capitol rotunda in Harrisburg, during which state Sen. Andy Dinniman and other lawmakers rolled out a series of bills designed to further limit Sunoco’s use of eminent domain and rein in its alleged lack of oversight.
Dinniman’s case before the PUC last year saw Sunoco’s pipelines temporarily shut down due to concerns raised by Dinniman’s constituents in the Philadelphia suburbs
The legislative package rolled out Tuesday will “create the beginnings of a strong regulatory process in Pennsylvania where none currently exists,” Dinniman said.
“You will see a strong caucus emerge, Democrat and Republican, who have had enough with Sunoco,” Dinniman said.
The proposed legislation includes bills that would, for instance, create a new, public process for siting pipelines. Another bill would further define the notification and emergency training requirements for residents and first responders within the potential hazard area of a pipeline.
Advocates are also looking at the process by which Sunoco re-used its Certificate of Public Convenience and Necessity, which gives it eminent domain powers despite being a private corporation.
While Sunoco’s pipelines must comply with the technical specifications laid out in federal and state codes, there is little prescriptive law spelling out how these rules are to be enforced. Ultimately, the responsibility is on the owner, which in this case is Sunoco’s infrastructure parent company, Energy Transfer Partners.
But the common refrain among speakers at the Capitol on Tuesday, including Baker, was that this effectively means that Sunoco and ETP are their own regulators.
The company is building two pipelines, the 20-inch Mariner East II and 16-inch Mariner East IIX, along the path of Mariner East I, a line that was originally built in 1931 for petroleum.
All three lines are destined to transport so-called highly volatile liquids, the raw product of hydrofracking from shale formations in western Pennsylvania. The gasses are compressed into liquids under high pressure, and then piped across the state for refinement at the Marcus Hook facility near Philadelphia.
Sunoco has been hit with millions of dollars in fines for spills, leaks and other violations over the past two years, although advocates said this doesn’t seem to have slowed the pace of violations.
Records from the Pennsylvania Department of Environmental Protection show 37 incidents of contamination due to pipeline construction in Cumberland County alone since April 2017, including a leak of 170,000 gallons of drilling fluid into wetlands along LeTort Spring Run between May 6 and May 19, 2017.
An investigation by Reuters, published in November 2018, found that Mariner East II construction racked up violations at a much higher rate compared to other pipeline builds, due in part to its pace. The pipeline has been built at a rate of roughly 50 miles per month, compared to an average of 17 miles per month in other builds of comparable size and cost, Reuters found.
In Cumberland County as well as the Philadelphia suburbs, Sunoco’s drilling for the new Mariner East lines has exposed portions of Mariner East I, which has been plagued with leaks since its re-purposing for HVLs.
A PUC investigation into a leak in Berks County found that Sunoco had been negligent in its anti-corrosion measures when re-fitting the old pipeline.
Apart from the environmental damage, concerns have also been raised about the enforcement of safety measures for those residents whose homes and businesses are within the danger zone in the case of leak or explosion.
Baker pointed to Sunoco’s abrupt cancellation of safety hearings with the Lower Frankford Township supervisors and Cumberland County commissioners, as well as the lack of safety training for local emergency crews beyond boiler-plate pamphlets.
Part of this problem, according to advocates, is that Sunoco does not share the full technical specifications and design limits of its pipeline with the Pennsylvania Emergency Management Agency.
“PEMA and our first responders cannot perform their duties because Sunoco refuses to share critical, life-saving information, claiming this information is a national security issue,” said Rebecca Britton, one of the affected Chester County residents who attended Tuesday’s rally.
Britton’s own case before the PUC argues that Sunoco has violated Pennsylvania’s Title 35, which grants PEMA its power to control hazards.
But unless a public agency is willing to assert that Sunoco has prevented it from legally defined duty, and is willing to assert that authority in court, the case is hard to make.
That is the crux of Baker’s current issue. Sunoco’s request to delay the hearing was triggered in part by Baker’s indication that he would subpoena the PUC’s lead gas safety investigator.
Baker said the intent is to get a regulatory official to publicly state how the agencies determine who is responsible for compliance, how this is carried out, and under what legal guidelines, something Baker said he has yet to get a clear answer on.
Specifically, in Baker’s case, the issue is getting an answer on whom, if anyone, has verified that the Mariner II and IIX lines placed in Cumberland County meet applicable standards.
Baker said he has reason to believe they don’t, based on photos taken during construction that show pipe joints that have had reinforcing collars sleeved onto their ends, and the sleeves then welded together.
Baker said this indicates the pipes used by Sunoco are known to experience excessive end expansion under pressure. This issue was studied by the federal Pipeline and Hazardous Materials Safety Administration, whose findings were detailed in a Plains Justice report that Baker included in his filing.
Mariner East II is up and running, albeit using a work-around of repurposed lines in the Philadelphia suburbs. But no new permits for work are being issued by the DEP, per an announcement last month by the Wolf administration.
“There has been a failure by Energy Transfer and its subsidiaries to respect our laws and our communities,” Gov. Tom Wolf said in a statement at the time. “This is not how we strive to do business in Pennsylvania, and it will not be tolerated.”
Dinniman said he would like to see Wolf shut down construction and operation of the pipelines for a two-year window, as legislation is passed to make the regulatory process more defined and detailed.
The new regulatory process would then be retroactive, Dinniman said, potentially forcing Sunoco to go back and make changes to the Mariner East lines.
On Tuesday, lawmakers who have lined up with Dinniman on the issue said they felt more optimistic in getting some movement out of state agencies and the Wolf administration.
“Two years ago I thought we were never going to stop this pipeline,” Sen. Tim Kearney said. “I don’t believe that anymore.”