The Dragonpipe (Mariner East pipeline system) is a disaster waiting to happen, but we have seen remarkably little interest in the public-safety issues with this pipeline from the courts, the governor, the legislature, or the Public Utility Commission (PUC), all of whom are supposed to be protecting us.
At the moment, much of the action in trying to stop the Dragonpipe is happening at the PUC. There are several cases concerning the Dragonpipe in various stages before the PUC, including one brand new one (filed November 19). I’ll start by describing that one, then summarize the others that are pending.
The new case, nicknamed the “Safety 7” case for its seven complainants, is an “emergency petition”, meaning that hearings will be held almost immediately. (The others are “formal complaints”, which take months. The difference is explained in a note at the end of this post.) The Safety 7 case is very important, because it alone has the potential of being decided in time to prevent the startup of the “Frankenpipe” (the patchwork pipeline composed of sections of new 20-inch and 16-inch pipe, connected to an old 12-inch line through much of Chester and Delaware County).
For each case, I have provided a “docket number”, which you can use to search the PUC website for relevant dates and documents. The PUC docket is a list of all the actions taken by the PUC in the case, and all the public documents involved in it.
It’s all about safety. The theme running through all these cases is the lack of adequate thought and planning given to safety. There is no real warning system in place, no sound advice about what people should do if they do get a warning, and a woeful lack of public information. It is the duty of the PUC to protect the public, and the threat from this pipeline system is clear. Will this cluster of cases goad the PUC into action, or are they too mired in the other half of their job (supporting the utility industry) to worry about public safety? These cases will tell the tale.
The Safety 7 case (Meghan Flynn et al., docket # P-2018-3006117 and C-2018-3006116).
Status: Emergency hearing scheduled.
Type: Emergency petition and formal complaint.
Request: Cease operation of ME1, and prevent startup of other Mariner pipelines until a credible safety plan is in place.
The most recent case (including both a petition for emergency relief and a formal complaint) was filed on November 19, 2018. There are seven petitioners, all private citizens. They all live within a few hundred feet of the pipeline, work within a few hundred feet of the pipeline, have children in schools within a few hundred feet of the pipeline, live where evacuation might be necessary, or some combination of these. The complainants all live in Delaware or Chester County.
This case is being handled as an emergency petition, with hearings only a few days away. Sunoco is scurrying to try to get the Frankenpipe up and running in early December, so time is very short.
The petition argues that the PUC is required to make sure the public is kept safe, and part of that duty is to ensure that Sunoco has provided the public with safety plans that would actually keep them safe in a pipeline emergency. The only plans disseminated so far have advised people to walk upwind and away from the pipeline, on foot and without using any electrical switches or cell phones. They are supposed to call 911 when they have reached a safe area.
There is no information in Sunoco’s plans about how people would be alerted to a leak in time to respond, how they would know the wind direction, how they would know they have reached a safe area (since the gases can’t be seen or smelled), under what circumstances (if any) they should remain indoors, how those who can’t walk (because of age or disability) would be protected, and so on.
The emergency petition asks the PUC to immediately stop the ME1 from operating and to prohibit operation of ME2, ME2x, and the “workaround pipeline” (i.e. the “Frankenpipe”) until Sunoco has actually produced a credible plan for keeping people safe.
Sunoco has not yet responded to the petition, except to immediately request more time than the 5 days allotted for a response (because this period included the Thanksgiving holiday).
Come to the hearing! An emergency hearing is scheduled for Thursday and Friday of this week (November 29 and 30), starting at 9:00 each day. The location is the Keystone Building, Hearing Room 2, 400 North Street, in Harrisburg. These hearings are open to the public, and they provide a great opportunity to see company representatives and pipeline experts get cross-examined and learn how our regulatory system works. Attend if you can: by your presence, you show that you care about this issue.
The other cases. In addition to the Safety 7 case, the following cases are working their way through the PUC process. At the moment, no hearings are scheduled in any of them.
Senator Dinniman’s case (docket # C-2018-3001451)
Status: Stuck in Commonwealth Court.
Type: Formal complaint
Request: Stop work on ME2 and ME2X in West Whiteland.
On April 25, 2018, State Senator Andy Dinniman filed both an emergency petition and a formal complaint against Sunoco, asking for work on ME2 and ME2X in West Whiteland to be stopped.
There were two marathon one-day hearings in Harrisburg presided over by Administrative Law Judge Elizabeth Barnes. They ended without a final resolution, and the case has continued as a formal complaint.
From the start, Sunoco has challenged the standing of Senator Dinniman to even bring the case. Judge Barnes allowed it to continue, but Sunoco has now appealed it to Commonwealth Court on the grounds that the PUC was wrong to give Dinniman standing. The net result is that the case is now tied up in Commonwealth Court (where it could languish for months) and the PUC will not act on it until that appeal is decided. That situation also affects the Andover Homeowners’ Association case, which is described next.
The Andover Homeowners’ Association case (docket # C-2018-3003605)
Status: Stuck in Commonwealth Court.
Type: Formal complaint
Request: Determine whether Sunoco can operate Mariner system safely; require a credible plan for notification and evacuation.
This formal complaint was filed July 24, 2018 by the homeowners’ association of the Andover subdivision in Delaware County, near the Chester County border. The right-of-way for all four pipelines (ME1, ME2, ME2X, and the 12-inch “bypass” pipeline) pass through its property, and Sunoco cut down many old-growth trees in the association’s green space in preparation for pipeline construction, although it has done no actual pipeline work there in the ensuing months.
The Andover complaint asks the PUC to perform a complete risk assessment “to determine whether Sunoco is able to operate any or all of the Mariner East System” safely, and it asks for a “credible notification and evacuation plan” in the event of a release.
The Andover group asked for its complaint to be consolidated with Senator Dinniman’s, and that initially looked like a good idea, since it would strengthen both cases. On September 4, 2018, Judge Barnes consolidated the cases under the Dinniman docket number (C-2018-3001451). But when Senator Dinniman’s standing ended up in Commonwealth Court, that halted the consolidated case (including the Andover complaint) in its tracks.
Wilmer Baker’s case (docket # C-2018-3004294)
Status: Prehearing conference call scheduled.
Type: Formal complaint
Request: Provide an alarm system, train first responders adequately, replace old iron pipe with new American steel.
Cumberland County resident Wilmer Baker filed a complaint with the PUC on August 10, 2018. He is filing without a lawyer (“pro se”), which is a brave thing for an individual to do, given that it requires personally defending your position under questioning from Sunoco’s high-power legal team. Baker’s original complaint is not available on the web, but in an interview with PennLive he said his main concerns were that Sunoco needed to install an alarm system, that first responders weren’t adequately trained, and that Sunoco needed to replace old, iron pipe with new American steel pipe. Sunoco’s lawyers filed a series of objections, and Baker responded to them. These documents, including Baker’s handwritten responses, are available to the public on the PUC docket.
Sunoco was not able to have the complaint dismissed, and it looks like there will be a hearing in Harrisburg. The case has been assigned to Judge Barnes, who has been handling the Dinniman case. A prehearing conference call has been scheduled for November 29.
Melissa DiBernardino’s case (docket # C-2018-3005025)
Status: Awaiting scheduling.
Type: Formal complaint
Request: Shut down ME1, halt construction of other Mariner pipelines, provide credible emergency plans.
Like Wilmer Baker, Chester County resident Melissa DiBernardino is also filing pro se. Her filing, which the PUC received on September 28, 2018, has not been made public, but you can get a sense of it by reading Sunoco’s response, which is public. She wants ME1 shut down, construction and operational plans for ME2, M2x halted, and plans to use the 12-inch bypass pipeline stopped, all due to safety concerns and the lack of a credible plan for emergencies.
Sunoco, in its initial response, argues that large parts of DiBernardino’s complaint should be stricken because (they claim) she lacks standing, she includes “scandalous and impertinent” allegations, and many parts of her complaint don’t follow the official rules. DiBernardino filed an amended complaint on November 13, also not public.
So far, no hearings in this case have been scheduled.
Just as in a court case, the PUC must ultimately render an opinion in each of these five cases. Their actions can range from granting all the requests in the complaint to dismissing them all, or something in between.
A note about emergency petitions and formal complaints. There are two options for requesting an action by the PUC: emergency petitions and formal complaints. An emergency petition, if the PUC accepts it, sets into motion a relatively rapid process that can result in a ruling within a few weeks. A formal complaint is more like a trial and takes months.
Filing an emergency petition and a formal complaint together is a common procedure. The wording is mostly the same. If the emergency petition is not granted, it is folded into the formal complaint. The difference between the two is that the emergency petition asks for an emergency hearing and a quick decision. That can only happen if four criteria are met: the petitioner’s right to relief is clear, the need for relief is immediate, the injury would be irreparable if relief is not granted, and the relief requested is not injurious to the public interest. Those four requirements must be met in the emergency-petition filing, but not in a formal complaint.
Of the five cases listed above, only two started out as emergency petitions: Senator Dinniman’s case and the new Safety 7 case.