Safety7 logo (Annette) 10-19-19
Graphic courtesy of Annette Murray

We’ve waited a long time for this (and it is only one step in a lengthy series) but on October 23 and 24, the Pennsylvania Public Utility Commission (PUC) will finally begin hearings in the “Safety 7” complaint and three related complaints. The hearings will be held in the “historic” West Chester courthouse (the one with the big columns, at the corner of Market and High Streets). The hearings will start at 9 a.m. each day. There will be a rally beforehand, starting at 8:30.

Given the experience of previous Dragonpipe (Mariner East pipeline system) hearings before the PUC, it is likely that the hearings will last at least until 5 p.m. each day, and probably later.

Attend the pre-hearing rally (then stay if you can). The bulk of this blog post is a primer on the context of the hearings and where they fit in this case. But before I get into that, let me encourage you to participate in the pre-hearing rally that will occur both days outside the courthouse, starting at 8:30. It will end at 9:00 so that you can attend the hearings.

Whether or not you join the rally, you should attend the hearings if you can. It’s a big time commitment, but worth it. “Hearings” may sound boring, but trust me, these hearings won’t be. The testimony will be riveting, and the cross-examination will be harsh. (Sunoco knows the future of Mariner East is on the line.) Yes, there will be periods of legal wrangling between the lawyers from time to time, but you will always have the sense that a really important issue is at stake. You won’t fall asleep.

What is this case about? These hearings are important because this case constitutes the most likely regulatory avenue for shutting down the Dragonpipe. Sunoco recognizes the threat and will use every possible tactic to defeat it. The issue in this case is whether Sunoco has complied with the requirement that it provide the public with the information it needs in order to respond appropriately to a leak. Sunoco contends it has satisfied this requirement with its advice to “walk uphill and upwind for half a mile; don’t do anything that could create a spark”.

The complainants in this case (see “Who are the players”, below) contend that Sunoco has failed to provide an actual plan. The advice Sunoco has provided falls short in several respects: there is no warning system to alert people to a leak, the advice is impractical in some locations and some weather conditions, and many people along the pipeline route (particularly the very young, the elderly, and the infirm) cannot walk that far or may not even be able to leave their residences.

What will happen in the hearings? The first thing to be resolved (if it has not been resolved sooner) is Sunoco’s legal maneuver to try to eliminate most safety-related testimony. (See If Sunoco’s tactic is upheld, the hearings will be short and will be stripped of most of the important information. I have to believe the judge will not agree to this.

Then, the actual hearings will begin. A series of witnesses (some of them complainants, others residents along the pipeline) will give information about how the pipeline has affected them and their families. Probably, this will be in the form of a question-and-answer session with their attorney. But I believe they also have the option of simply reading a statement.

These witnesses are so-called “lay witnesses”, meaning they do not claim credentials as pipeline experts. There will be a separate hearing for expert witnesses next summer in Harrisburg.

After each witness has given testimony, Sunoco lawyers will cross-examine them.

On the first day (October 23), the witnesses for the original Safety 7 complainants will give testimony. On the second day, it will be the turn of the other three, each of whom filed an independent complaint without the benefit of an attorney. The PUC has consolidated the four cases (Safety 7 plus the three similar independent complaints) into a single proceeding.

Who are the players? The complainants in the Safety 7 case are:

  • Meghan Flynn
  • Rosemary Fuller
  • Michael Walsh
  • Nancy Harkins
  • Gerald McMullen
  • Caroline Hughes
  • Melissa Haines

Their attorney is Michael Bomstein, who is representing them on a voluntary basis (“pro bono”).

The other three complainants are:

  • Melissa DiBernardino
  • Laura Obenski
  • Rebecca Britton

They filed their cases without an attorney and are representing themselves (“pro se”).

Some of these complainants will testify themselves, and there will be testimony from other witnesses they have requested to appear.

The defendant is Sunoco Pipeline, L.P.

A variety of organizations and individuals have filed as “interveners” (parties with a stake in the case). Being accepted as an intervener gives them the ability to present evidence and cross-examine witnesses.

The interveners in support of the Safety 7 are:

  • Individuals: Virginia Kerslake, Thomas Casey, Josh Maxwell, and State Senator Tom Killion
  • School districts: Twin Valley School District, Rose Tree Media School District, Downingtown Area School District, West Chester Area School District
  • Townships: East Goshen Township, Middletown Township, Thornbury Township, West Whiteland Township, Uwchlan Township
  • Counties: Delaware County, Chester County
  • Associations: Andover Home Owners Association

There is one intervener in support of Sunoco: Range Resources Appalachia (a major customer for Mariner East).

What happens next? In all probability, the period immediately following these hearings will be relatively quiet for this case. The expert witnesses will file written testimony in the spring, and (if all goes to plan) they will testify in Harrisburg in the summer. Each side will be able to cross-examine the other side’s experts. A few weeks later, both sides will submit briefs making their final case, based on the evidence from the hearings. Interveners will also be able to file briefs.

A few months after that, the judge will hand down a decision and then, at the next meeting of the full Commission, the decision will be ratified (or not). Even then, I believe it would be possible in principle for one side or the other to appeal to Commonwealth Court. So don’t expect quick action from the PUC, based on this case.

Another possibility is that someone will file an “emergency petition” based either on the evidence compiled for this case or on some important event such as a major leak. That approach bypasses the long procedure outlined above and results in PUC action within a few weeks.

Come and participate. Be a part of the pre-hearing rallies, then stay if you can. It’s important for the judge (and Sunoco’s lawyers) to see the level of public opposition to this pipeline, and it is equally important to show the complainants that we support them fully.

Bear in mind that signs will probably not be allowed inside the courtroom, and you are expected to listen quietly. Outbursts are likely to get you thrown out. Video recording, including using your cell phone for video, is not permitted.

I hope to see you there.