STATE IMPACT PENNSYLVANIA – A Pennsylvania judge on Thursday halted construction of Sunoco’s two new Mariner East pipelines, as well as the operation of the existing Mariner East 1 pipeline in Chester County’s West Whiteland Township, granting an emergency petition by state Sen. Andy Dinniman.
Administrative Law Judge Elizabeth Barnes said in an order that she was persuaded by Dinniman’s argument that the pipelines are a risk to public safety in the township, and granted his emergency petition for a halt to construction and operation of the pipelines until the PUC determines that they are safe.
“I find there to be an imminent risk to the public and a need for immediate relief and further study to be done on ME1, ME2 and ME2X for the Commission and its Bureau of Safety Engineers to evaluate before construction should resume on ME 2 or ME2X in West Whiteland Twp. and before a potential catastrophic event occurs on ME 1,” the judge wrote in an order issued Thursday after two days of hearings on the Senator’s petition earlier this month.
“Additionally, local and state government needs time to create emergency evacuation and notification plans and to educate the public before operations should resume.”
Energy Transfer Partners, parent company of Sunoco, blasted the judge’s decision, which it said was a “significant departure from the law” and from PUC’s due-process procedures. It will ask PUC to review the order.
“The entire energy industry should be concerned about today’s order and consider this result when making decisions regarding future capital investments in the state as it upends Pennsylvania’s entire regulatory environment,” the company said in a statement.
The order reimposes a shutdown on the operation of Mariner East 1 that the PUC ordered in early March after sinkholes appeared at Lisa Drive, a West Whiteland site where the new lines are being built alongside the existing pipeline. The first order was lifted in early May after the PUC concluded that there was no problem with the integrity of the old line.
The new order said: “Sunoco Pipeline L.P. is enjoined from beginning and shall cease and desist all current operation, construction, including drilling activities on the Mariner East 1, 2 and Mariner East 2X pipeline in West Whiteland Township, Pennsylvania until the entry of a final Commission Order ending the formal amended complaint proceeding.”
Energy Transfer Partners said there was “no evidence or legal basis” to back up Dinniman’s claims and the judge’s order.
“Specifically, the safe operation of ME1 was verified through exhaustive geophysical testing and analysis that was verified by the PUC’s Investigation & Enforcement division and their experts, which was the basis for the PUC’s 5-0 decision to return the line to service,” the company said.
Latest blow to the project
For ME1, which was built in the 1930s and has recently been repurposed to carry natural gas liquids, the ruling means the entire pipeline will be shut down even though the ruling refers only to West Whiteland Township, said Nils Hagen-Frederiksen, a spokesman for the PUC.
The order is the latest blow for a pipeline project that has been plagued with technical, environmental and legal problems since it began construction in February 2017. Last summer, construction was temporarily halted by the Environmental Hearing Board, a state court, after multiple spills of drilling fluid into waterways and private land along the 350-mile route across southern Pennsylvania.
Some private well owners in West Whiteland experienced cloudy water last July after the company drilled into an aquifer there.
In January, the Department of Environmental Protection shut down construction for about a month and issued a $12.6 million penalty to Sunoco for continuing spills, saying the company had been “egregious” in breaking environmental rules.
Residents along the pipeline route, especially those in the densely populated suburbs west of Philadelphia, say the pressurized natural gas liquids to be carried by the new lines represent a threat to public safety because of their highly explosive nature, which they say is greater than that of traditional natural gas pipelines.
Sunoco insists the lines are safe and meet or exceed state and federal regulatory standards.
But the judge echoed activists’ safety concerns, and said Sunoco had not done enough to ensure that residents know how to protect themselves if there’s a leak from the line. She accused the company of providing only “boilerplate” information to residents who have asked for specific instructions on how to respond to a hazardous liquids emergency.
She noted that John Zurcher, a pipeline safety expert who testified for Sunoco at the hearing on Dinniman’s petition, had been unable to say how people who were unable to run should respond to a leaking vapor cloud.
“All of these facts support a finding that Sunoco has failed to take reasonable efforts to warn and protect the public from danger,” she wrote.
The environmental problems added to delays in construction of Mariner East 2 which the company recently said is due for completion in the third quarter. Thursday’s ruling is not expected to affect that timeline, the company said.
When operational, the more than $2.5 billion line will carry propane, ethane and butane from southwest Pennsylvania and Ohio to a terminal at Marcus Hook in Delaware County where most of it will be exported.
By reimposing the shutdown of Mariner East 1, the ruling raises questions about the PUC’s decision on May 3 to allow it to restart carrying natural gas liquids after a shutdown of almost two months.
But the PUC’s Hagen-Frederiksen said the May 3 decision was specific to the West Whiteland neighborhood of Lisa Drive, where the sinkholes appeared starting late last year, and that the commissioners had invited the public to file their own complaints about the project. The order applies to the township as a whole, and is expected to require a re-examination of all the geology that the pipelines go through there.
“Today’s order from Administrative Law Judge Barnes is the result of the exact process highlighted by the Commission, which allows citizens to have their voices heard,” Hagen-Frederiksen said.
He added that the order effectively means that all of Mariner East 1 is shut down even though Judge Barnes only refers specifically to the pipeline’s section in West Whiteland.
Reaction: A ‘great victory’ or a ‘shocking development’
Dinniman, a Chester County Democrat, welcomed the ruling and said he hopes PUC will now explain how it concluded that there was no threat to the integrity of ME1, an explanation that he said was lacking in the May 3 decision.
“I believe the judge’s ruling will force the PUC into a sharing of the information on which it based its decision to continue to allow hazardous materials to go through an 87-year-old pipeline,” Dinniman said.
Opponents of the Mariner East project welcomed the ruling and praised Dinniman’s initiative.
“The Public Utility Commission’s Order provides much needed protection for the public from the dangers Sunoco has inflicted upon communities in Chester County and beyond,” said Joseph Otis Minott, executive director of Clean Air Council, which has led legal challenges to the project. He called the ruling a “great victory.”
Food & Water Watch, another environmental group, said the ruling shows that Gov. Tom Wolf should halt construction of the two new pipelines altogether.
“Today’s decision gives hope to the communities along the pipeline route who have demanded protection from Sunoco’s dangerous and unnecessary pipeline,” the group said in a statement.
But advocates for the pipeline industry and the labor groups that support it said there is no reason to halt the pipelines, which meet rigorous regulation by state and federal agencies.
“Pipeline opponents have shopped the legal system long enough to finally find a judge who is more sympathetic to their cause than the facts,” said Kurt Knaus, a spokesman for the Pennsylvania Energy Infrastructure Alliance.
GAIN, a group that promotes infrastructure investment, condemned the ruling, which it said would undermine confidence in Pennsylvania’s regulatory environment.
“This activist Judge’s decision flies in the face of the extensive testing and review overseen by the Pennsylvania Utility Commission which led to the Commission’s unanimous decision to allow operations of Mariner East 1 to resume just three weeks ago,” it said.
It called the ruling a “shocking development” that risks the loss of billions of dollars in investment for other infrastructure projects.
In her 26-page ruling, the judge said Mariner East 1 had leaked three times in the last year, including on April 1, 2017, in Morgantown, Berks County where about 1,000 gallons of natural gas liquids escaped. It took Sunoco 90 minutes to shut the pipeline down. “This is a dangerous quantity of hazardous gas,” she wrote.
In West Whiteland, Sunoco had not done enough to protect water supplies, she wrote, siding with Dinniman.
“Petitioner has shown Sunoco is putting West Whiteland Township’s water supplies at risk by failing to adequately identify, document and avoid drilling through well or aquifer locations underground,” the judge said.
StateImpact Pennsylvania reporter Susan Phillips contributed to this report.