In February of 2017, the Department of Environmental Protection (DEP) issued permits allowing Sunoco to begin construction of the Dragonpipe (Mariner East pipeline system). Many of the permits had deficiencies that the DEP knew about and had already documented internally. We are now living with the consequences of those deficient permits. The story of why they were issued is finally coming to light. It involves inappropriate interference at the highest level of state government.
The defective permits. In the fall of 2016, Sunoco was engaged in a back-and-forth process with the Department of Environmental Protection (DEP). Sunoco had applied for construction permits for sites all along the Mariner East route. There were major deficiencies in the initial applications, which the DEP had identified and notified Sunoco about; and Sunoco had responded with revised permit applications that partially addressed some of the problems. But many problems remained. In December 2016, the DEP prepared letters pointing out the remaining deficiencies and asking for them to be fixed.
The DEP should have sent out those deficiency letters and should have required Sunoco to submit proper plans for the potential environmental impacts of its construction. That would have been the standard regulatory process. But those letters were never sent, and Sunoco never fixed its defective plans. Instead, in February 2017, the DEP issued permits in spite of the known deficiencies.
Why didn’t the DEP send the letters? The reason the deficiency letters were never sent, we now know, is that Governor’s Wolf’s office told the DEP not to send them. Instead, the Governor’s Deputy Chief of Staff, Yesenia Bane, initially asked for an opportunity to review them. Then, as a result of her office’s intervention, they were not sent.
We know about this because of texts between Bane and Patrick McDonnell, the head of the DEP, that were brought to light by an ethics complaint filed against Bane. A copy of the text exchanges (heavily redacted by the Governor’s legal staff) is here.
On the morning of January 25, 2017, Bane texted to McDonnell,
“Please no deficiency letter to Sunoco until we can get you to update Mary/Gov.” [“Mary” was presumably Mary Isenhour, the Governor’s Chief of Staff.]
Later that day, Bane wrote:
“I need the list of issues with Sunoco this afternoon so I can give the gov a heads up.”
It is clear from the texts that negotiations between Sunoco, the DEP, and the Governor’s office about what would be required of Sunoco continued during late January and early February.
On February 1, in response to Bane’s complaints about the permitting issues, McDonnell wrote:
“… We can let him [Governor Wolf] know the commitment to get things done … If I need to talk to Mike [presumably Mike Hennigan, Sunoco CEO at the time] 5 times a day for the next week, that’s what we will do.”
“Gov is aware but will not say anything. This needs to be done by 1pm the latest. 6pm is not acceptable.”
Then, on February 9, Bane wrote:
“Can we touch base on ME2 at some point today? … We need to have the comment responses done tomorrow.”
“It will be in as good a shape as we can make it.”
The deficiency letters still had not been sent out—and ultimately, they never were. Instead, on February 13, the permits were issued. The deficiencies were never addressed.
Why did the Governor’s office intervene? We don’t really know why Bane was pushing so hard for the permits to be dealt with quickly. She may have been motivated by the fact that her husband was a lobbyist for the oil and gas industry and she wanted to help his clients, or she may have been following instructions from Governor Wolf, who received large sums of money for his election campaign from the industry. In any case, there was clear interference with the normal regulatory process of the DEP, and (based on the Bane/McDonnell text exchanges) the Governor was aware of it. The Governor presumably wanted to help Sunoco by getting the permits issued quickly.
So the question becomes: to what extent is it acceptable for the Governor’s office to intervene to cause a regulatory agency to cut short its normal review process?
Results of the ethics investigation. The investigation of Yesenia Bane by the State Ethics Commission ended, after a year, with a mixed conclusion. You can read their findings here. They concluded that the Commission’s Investigative Division “would not be able to meet its burden that a violation of the Ethics Act occurred.” To prove a violation under the Act, the letter said, they would have had to establish one of two things: “(1) a use of the authority of your public position to benefit your husband and/or a business with which he is associated with [sic]; or (2) a private pecuniary benefit to your husband and/or a business with which he is associated.”
Although that legal hurdle was not met, the Commission noted, “… your position, coupled with the employment of your husband as an industry lobbyist, created a perception that your actions in fulfilling the Governor’s policy agenda was a way for you to financially benefit your husband and/or his employers.” Because they didn’t find sufficient evidence of an actual benefit involving Bane’s husband, the case was dropped.
Unethical? It certainly looks that way. On the other hand, the Commission did find plenty of evidence of impropriety and tampering with regulatory procedures. They found that Bane had twice been warned in writing, in September and December of 2016, that because her husband was a lobbyist, she “was not to be involved with any matters involving his employers.” But it is obvious from the text messages that she was deeply involved in Sunoco-related matters well into 2017. While it wasn’t clear that Bane’s activities resulted in benefits to her husband, they clearly resulted in benefits to Sunoco.
Although there wasn’t enough evidence to show that Bane was in violation of the Ethics Act, the Commission noted that she was evidently “acting as a liaison and fulfilling the Governor’s policy agenda” when she helped Sunoco bypass the DEP’s regulatory process.
To me, interfering with a regulatory agency in this way is plainly unethical, even if the action does not violate the letter of the state Ethics Act. If it is not covered under the Ethics Act, then the Act is inadequate and needs to be changed.
The legacy of the faulty permits. In the two years since the deficient permits were issued, we have been living with the problems they created. There have been problems of erosion, runoff, drilling fluid frac-outs, and pollution of streams lakes, and aquifers all across the state. The DEP has reported over 100 environmental violations. Many of these problems might have been avoided if the proper permitting procedure had been followed and Sunoco had been forced to construct its pipeline with more concern for the environment.
In its permit applications, Sunoco was required to show how it would protect the area surrounding its work sites from erosion and water pollution. The deficiency letters that were never sent detailed dozens of deficiencies, just in two of the three DEP districts through which the pipeline passes. (I have not seen the list of deficiencies for the third district, but presumably there were many deficiencies in that district too.) A wide variety of problems with Sunoco’s permit documents were described in the letters. Almost all of the issues were things that Sunoco had been asked to fix in its previous round of permit-application revisions. but the problems remained. A copy of the deficiency letters that the DEP drafted, but didn’t send, is here.
Statewide problems included failure to show runoff calculations, failure to show how runoff would be dispersed into a thin sheet (as required to avoid erosion), and failure to specify what type of materials would be involved in restoration. In addition, there were over 40 problems that were site-specific. Most frequently, these had to do with inadequate design of the containment for runoff—things like whether a “sock” was needed or a silt fence would be enough; whether the orientation of runoff barrier was suitable to prevent erosion; whether the height or length of a barrier was sufficient, given the likely precipitation; improper design of berms; and on and on. There were also many problems that appeared to be just carelessness on the part of those preparing the permit applications.
It needs to be emphasized that erosion and ground subsidence is not just an environmental concern. It can result in pipeline failure and rupture, as we saw in last fall’s explosion in Beaver County.
One particularly disturbing problem had to do with remediation of arsenic in the soil, which had “not been adequately addressed” in Sunoco’s previously-submitted permit application. In one of the letters that was never sent, Sunoco was asked whether the area had been tested, whether there were plans for hauling tainted soil off-site, and whether the area would be re-tested during final restoration. I believe this referred to the Andover easement in northern Delaware County, where an orchard had been and where arsenic-based pesticides had once been used. As far as we know, Sunoco has never addressed this issue, and the dust and runoff that is currently produced by the site may contain arsenic, endangering those in the surrounding area.
This must stop. Enough damage has been done. It is time to let your representatives in Harrisburg know that this kind of regulatory interference by politicians is intolerable and must be stopped. If current laws are not sufficient, then new ones must be enacted.