The settlement: what’s happening with drilling and water testing

Heavily revised as of 8-15-17.

On August 8, 2017, a settlement was reached in the “supersedeas petition” brought against Sunoco/ETP by the Clean Air Council, the Delaware Riverkeeper Network, and the Mountain Watershed Association.

I posted an initial attempt at summarizing the terms of the settlement, based on my layperson’s reading of it. There was a lot of complexity in the documents, and I knew my summary was likely to have errors.

I was right. I have since had a chance to speak with one of the attorneys on the case, Kathryn Urbanowicz of the Clean Air Council, and I now have a better sense of how the settlement works. This post is a summary of what I now know, and Urbanowicz was kind enough to review it for me, so I believe it is basically correct. (But any remaining errors are my fault, not hers; and NO legal advice is being provided in this post.) If you have read my previous post, I suggest you forget what I wrote there and focus on this one instead.

It is important to note that the settlement relates only to horizontal directional drilling (HDD). To the extent it discusses “protection”, it is talking only about protecting water supplies and avoiding frac-outs (“inadvertent returns” of drilling fluid to the surface).  It does not apply to other kinds of environmental damage (clear-cutting the right-of-way, for example), and it does not address eminent domain issues or risks related to the pipeline, once operational.

It is also worth noting that this settlement is only one part of a larger, ongoing appeal of the water permits for the ME2, and that appeal continues.

That said, the settlement does attempt to address a lot of the drilling issues, and those are some of the most important ones right now.

You can read the text of the settlement here .

In terms of immediate public impact, there are two primary aspects to the settlement: (1) how Sunoco/ETP is to conduct drilling, and (2) the rights to notification and water testing that landowners have if their property is along the path (“alignment”) of the drilling. I will focus on those in the rest of this post.

But the settlement has other aspects that are too detailed to get into here.  Sunoco/ETP has agreed to improvements to operating and inspection procedures in several areas. You can find more on this by reviewing the changes to the “IR Plan”, the “Karst Plan”, and the “Water Supply Plan” on the Clean Air Council website.

Rules for how Sunoco must conduct drilling. The settlement divides drilling sites into two categories: the sites I’ll call “sensitive” sites (although that term is not used in the settlement) and all the other sites (I’ll call them “regular” sites). It lists the sites that are in the “sensitive” category, and provides a framework for adding sites to that category as necessary. Sensitive sites require extra evaluation prior to drilling, as outlined below.

The “sensitive sites” are listed in Exhibit 2 and Exhibit 3 . There are 47 such sites all along the pipeline route. About 20 of them are in Delaware and Chester Counties. Sites that have already experienced a frac-out or a water-supply issue are included, as are some additional sites. (Some of the other criteria for including sites are listed in Exhibit 2.)

The Mariner East 2 project consists of two pipes (16 and 20 inches in diameter). Sites will be added to the sensitive category during the drilling process if a frac-out occurs during the drilling for the first pipe. The extra evaluations will then have to be carried out before drilling begins for the second pipe.

Pre-drilling process at sensitive sites.  At each of the sensitive sites, Sunoco/ETP will be required to do the following:

• Re-examine the local geology, using information gleaned from HDD at that site and others.
• On a site-specific basis, consider data about geologic strength at the drilling depth, overburden strength, the HDD depth, the stress on the pipe caused as it is bent in pulling it through the hole that has been drilled, open cut alternatives to drilling, alternative routing, and the analysis of local well production zones.
• Conduct, as appropriate, additional geotechnical evaluations “using techniques generally recognized with the scientific community”, potentially including additional field drilling and sampling, seismic surveys, ground penetrating radar, and “electromagnetic surveys/electrical resistivity tomography”. My understanding is that these are commonly-used approaches to mapping out the underground aquifers and identifying geological features, such as voids, that would affect drilling.
• Specifically in karst (porous limestone) areas, Sunoco is to consider “seismic surveys and electromagnetic surveys/electrical resistivity tomography”; if they don’t, they must provide the DEP with an explanation of why not. An example of karst geology is the terrain north of Exton where private wells were affected by the drilling at Shoen Road. A useful map from fractracker.org that shows the alignment of the pipeline, the locations of frac-outs, and an overlay of locations of karst geology is here. You will have to select the karst overlay from the “Layers” drop-down.

Once Sunoco/ETP has completed this re-evaluation for a given site, they are required to provide a report of the findings, “signed and sealed by a Professional Geologist”.  The report will specify what Sunoco/ETP needs to do to minimize or eliminate frac-outs and to avoid impact to water supplies. The report will also contain an evaluation of whether HDD is actually feasible where it is planned, and may propose an alternative design or relocation of the HDD based on the results of the study.

Review and approval of the reports. The DEP will review the reports for each of the sensitive sites.

• If the report recommends a major modification to the drilling permit, that must go through the existing DEP procedures for permit modification.
• For minor modifications (examples include changing an HDD site to open trenching or changing the “limits of disturbance” for a drilling project) or where no modification of the plan is required, the DEP will have 21 days to make a determination of whether the report is satisfactory. Private landowners with a water source within 450’ of the alignment will get a printed copy of the report by certified mail and will have the opportunity to submit comments within 14 days. The reports will also be posted on the DEP website within one day of receipt.

No new evaluation is required prior to drilling at sites that are not on the “sensitive” lists.

Rights of landowners, clearly spelled out.  Besides the rules governing drilling, the other main aspect of the settlement concerns the rights of landowners along the drilling alignment, particularly with respect to notification and water testing. If you own land in the vicinity of the drilling, your rights are spelled out in the flow chart below. This chart is a simplified version of one published by the Clean Air Council. If you still have questions after you have consulted my chart, take a look at theirs. It has more detail, and it has links to the formal documents that spell out all the details.

The main items of information you need, in order to determine your rights under the settlement are these:

1. Has there already been drilling in your vicinity?
2. Has there already been an “inadvertent return” (frac-out) from the drilling nearest you?
3. How far from the drilling alignment is the closest point of your land?
4. If you have a private “water supply” (well), how far is it from the drilling alignment?

Armed with that information, you can find out what to expect on this chart:

Here is a PDF version of the same drilling flowchart which can be downloaded and printed.

If you find that you are not receiving the treatment from Sunoco/ETP that you should based on this chart, please notify the Clean Air Council.