Today (May 23, 2018), Mariner East 1 is being shut down, and construction of the Dragonpipe (Mariner East 2/2x) is being halted in West Whiteland Township, by ruling of the Public Utility Commission (PUC).
This remarkable turn of events is the outcome of State Senator Dinniman’s “Petition for Interim Emergency Relief”, filed May 1. Because of the “emergency” classification, hearings took place swiftly (on May 7 and May 10 in Harrisburg), and briefs were filed a few days later.
The Administrative Law Judge handling the case, Elizabeth Barnes, rendered her opinion to the Commission on May 21, and the result was published today. The entire sequence took just over 3 weeks—incredibly fast for a regulatory process.
Basically, Judge Barnes found that there is indeed an emergency and Dinniman’s request for a shutdown is justified. I find some of the details of her 26-page opinion very interesting, so I will quote them below. But you can read the whole thing on the PUC web site.
Specifically, Judge Barnes had five questions to decide:
- Did Senator Dinniman have standing to even file the petition?
- Did he have a clear right to request “relief” (in the form of shutting down ME1 and halting Dragonpipe construction)?
- Was the need for relief immediate?
- Would the injury be irreparable if the relief was not granted?
- Would granting the relief be injurious to the public?
Judge Barnes had to confirm that the answer to all five of these questions was “yes” in order to grant Dinniman’s petition, and Sunoco fought against each one of them in the hearings.
Senator Dinniman’s standing. Judge Barnes spends five pages of her opinion going over the issues involved in Dinniman’s standing. That is arguably the least interesting part of the document, so I’ll skip it here.
Is the right to relief clear? Here, Judge Barnes wades into the details of the risks raised in the hearings.
She writes, “I am further persuaded that… a risk of subsidence remains in West Whiteland Twp. sufficient for me to recommend a stay of construction in West Whiteland Twp. on ME2 and/or ME2X until a record may be developed in this case upon which a more informed decision may be made by the Commission.” (“Subsidence” refers to sinkholes or similar ground disturbances that could damage a pipeline.)
“Additionally, there is a substantial issue regarding whether Sunoco has adequately created and trained its personnel and first responders of townships along its route regarding proper emergency response and evacuation procedures…. Sunoco may have given safety pamphlets to 66,000 people along the 350-mile route, and to schools within .5 miles of the pipe. However, given that vapor clouds can move depending on weather conditions and people are mobile within their communities, this is insufficient.”
She goes on to discuss other hazards that Sunoco has not addressed (such as the potential to damage water supplies, the failure to provide adequate emergency planning and training, the lack of an integrity plan for ME1, and the lack of proper evaluation of local geology) and concludes, “All of these facts support a finding that Sunoco has failed to take reasonable efforts to warn and protect the public from danger.”
Is the need for relief immediate? Judge Barnes writes, “I am persuaded by the [testimony of various witnesses] in conjunction with corroborative evidence of multiple leaks along ME1 within the past year, multiple IRs [“frac-outs”], DEP regulation violations, and PHMSA notices of violations to find the need for relief is immediate…. The rupture of a hazardous liquid pipeline at the welds of an 8-inch pipe in [an area of dense population] such as West Whiteland and the ignition of such a potential vapor cloud could have catastrophic results. It would be injurious to the public to not slow down this project for further safety and pipeline integrity tests and the development of as much [of] a public integrity management plan as possible…. “
Would the injury be irreparable if relief is not granted? Judge Barnes writes, “I find the relief sought is necessary to prevent irreparable injury. The risk of physical injury or death in a densely populated area because of unsafe construction and operations constitutes irreparable harm. The Commission has already found this type of harm to be ‘catastrophic.’….I believe given the release and accident history of Sunoco, there is a grave risk of rupture on ME1 potentially at a welded seam, and that water supplies have already been damaged in West Whiteland Twp…. For these reasons, I find the injury would be irreparable if relief is not granted.”
Would the emergency relief be injurious to the public? “[A witness] testified an interim emergency order would delay the targeted completion deadline for the Mariner East project and would cause producers of propane, ethane and butane natural gas liquids (NGLs) a delay in being able to transport and ship their products through Pennsylvania; however, … there is insufficient evidence to show a substantial financial loss will be sustained by Sunoco’s customers pending a temporary interim injunction in this case. “
As to Sunoco’s potential losses, Judge Barnes lays the blame at Sunoco’s own feet: “Any financial harm to Sunoco, a foreign for-profit corporation, or its shipper(s) is outweighed by the by the potential harm the public may sustain without Commission intervention at this critical juncture and prior to the completion and start of ME2 and 2X. Sunoco has made deliberate managerial decisions to proceed in what appears to be a rushed manner in an apparent prioritization of profit over the best engineering practices available in our time that might best ensure public safety.”
The petition is granted. Since all five questions were answered with “yes”, the petition was granted, and Judge Barnes sets out a series of steps Sunoco needs to perform for the shutdown to be lifted. These include a variety of tests to be done on ME1, reports on emergency response plans, leak-detection plans, geophysical testing, and reporting of internal procedures to detect violations of various kinds.
Significantly, Sunoco is also required to “create for the public an integrity management program, risk analysis, and other information required to warn and protect the public and to reduce the hazards to which the public may be subjected.” Will we finally get some real risk information from Sunoco?
It is not clear to me what happens next. I believe that the PUC will now move into the “complaint” phase, which was Senator Dinniman’s second filing. This has more of the characteristics of a conventional trial and could last for months. It also seems likely that Sunoco will attempt to appeal this shutdown in the courts, perhaps seeking an injunction against it. As these issues are clarified, I will update and add to this post.