The Safety 7 plus 3 (+1) hearings: Day 1

On October 23, hearings began in the PUC case that includes the “Safety 7” complaint. In addition to that complaint, three other related complaints (filed “pro se” by individuals without attorneys) have been consolidated into a single proceeding. You can read about the background of the case, including who is involved, in my previous blog post.

In a surprise move, the judge consolidated one additional case, that of the Andover Homeowners Association, with these four (against the wishes of the Andover group). So that now makes it five cases: the Safety 7 plus 4.

These hearings are for “lay witness” testimony, meaning testimony from witnesses who don’t claim credentials that demonstrate pipeline expertise.

The plan was to hear from the witnesses for the Safety 7 complainants on the first day of hearings, and from the witnesses for the other cases on the second day. It didn’t work out that way: there was only time for four witnesses, and several that were supposed to testify on the first day will be heard on the second day. It seems impossible that all the remaining witnesses will be heard on the second day, but that remains to be seen.

In this blog post, I provide an overview of the first day’s testimony. You’ll find even more detail about the first day’s events in Eve Miari’s excellent running account on the HaltMainerNow Facebook page.

Objections all day. The hearings opened with a series of objections by Sunoco to potential witnesses listed by the pro se complainants Rebecca Britton, Melissa DiBerandino, and Laura Obenski. These objections centered whether Virginia Kerslake and Josh Maxwell could testify. After discussion, the judge ruled that Kerslake could testify, and Rebecca Britton (who had wanted Maxwell as a witness) agreed not to call him.

Sunoco sustained a pattern of objections throughout the day. In the majority of the cases, Judge Barnes overruled the objections. I often got the sense that Sunoco’s lawyers raised objections knowing full well that they would be overruled. I can only surmise that this is part of a strategy to have a better shot at getting the decision overturned on appeal, in case they don’t like the judge’s final opinion. There was constant back-and-forth between the legal teams about what was “expert” knowledge that a “lay” witness could or couldn’t testify about.

Eric Friedman’s testimony. Eric Friedman was the first witness. He reviewed his employment (as a pilot and by the FAA), his experience with Quest Consultants in their writing of the Citizens’ Risk Assessment, and his training on Quest’s Canary software package for modeling releases of highly-volatile liquids. He spoke about the results of that assessment and about the Delaware County risk assessment.

Friedman’s testimony was constantly interrupted by objections from Sunoco. For example, he had calculated that a 20-inch pipeline would contain about 690,000 gallons of liquid in 8 miles of pipe (the typical distance between valve sites). In an exchange that was typical of the morning, Sunoco’s lawyer objected that this was “expert” testimony, but Friedman responded that he knew “how to calculate the volume of a cylinder”, and the judge overruled the objection. Similarly, when Friedman referred to a Sunoco emergency response manual concerning ethane leaks, Sunoco’s lawyer objected that it was a Canadian manual; Friedman contended that ethane behaved similarly in both countries, and the judge overruled the objection.

In his testimony, Friedman referred to the federal requirements for public safety programs and emphasized (by showing examples of Sunoco’s published materials) that Sunoco failed to properly describe the hazards and failed to provide adequate information for the public to respond to a leak. He emphasized that a proper emergency response needs to be “credible and plausible.” He suggested that the PUC would surely not accept a plan if it said the proper response was “flap your arms and fly to the moon”; if that is true, it means the PUC does apply a test of credibility for these plans. They should apply such a test to Sunoco’s advice to “walk uphill and upwind half a mile”—advice that is impossible to follow for many people in many situations.

Friedman used drone footage to show how close to the homes in the Andover subdivision in Delaware County the pipeline runs. (He is president of the Andover Homeowners’ Association.)

Among the key points that Friedman established with his testimony were that:

• Sunoco has a poor accident history (among the worst in the pipeline industry)
• All the residents of the Andover subdivision live well within the blast radius for a pipeline accident
• The emergency response that Sunoco is telling the public to adopt is not credible or plausible
• Home sales at Andover have slowed very substantially, probably as a result of the pipeline construction

On cross examination, Sunoco tried to show that Friedman had an unreasonable bias against the pipeline project. They pressed him hard to say he was a “pipeline opponent”. He steadfastly refused to be categorized that way, saying instead he was a supporter of public safety, property rights, and constitutional rights. He conceded that, if a pipeline project impinged these rights, then he would oppose it.

The possibility of discrediting the credibility of a witness’ testimony because of their bias against the pipeline project seems to figure prominently in Sunoco’s intended defense—it came up in cross-examination of other witnesses later on.

In a particularly harsh series of questions, the Sunoco lawyer attacked Friedman’s involvement in a court case attempting to secure the rights of diabetics to pilot commercial planes. Friedman, who is a diabetic and a former pilot, was turned down for a license renewal on the basis that it was unsafe for a diabetic to be a commercial pilot. With the support of the American Diabetes Association, the case was appealed to federal court, but Friedman’s side lost.

Sunoco tried to establish that Friedman was selective in what kinds of risk he accepted. They claimed that Friedman accepted the risk that diabetic pilots posed to passengers, but not the risk that pipelines posed to local residents, because one was convenient for him and the other was not. It was nasty, and the judge grew impatient with it.

Friedman’s testimony and the ensuing cross-examination lasted until 12:50, when there was a 30-minute lunch break. It was clear by then that it would not be possible to get through the remaining seven witnesses planned for the first day. That proved true: only three more were able to testify. It remains unclear how the remaining four, plus the many witnesses called by the pro se complainants, will be heard in a single day.

Emilie Lonardi’s testimony. Dr. Emilie Lonardi is the Superintendent of the Downingtown Area School District (DASD), which has five schools near the Mariner East pipelines. Most of her testimony dealt with the Shamona Creek Elementary School and the adjacent Sixth Grade Center. She provided maps, photos, and a drone video to illustrate the proximity of the schools to the 12-inch “workaround” pipeline and one of its valve stations.

Lonardi expressed frustration at not knowing what to do in a pipeline emergency to keep children safe. Should they shelter in place? Evacuate? Should they wait for instructions from first responders? (But wouldn’t that involve using a phone, a possible ignition source?) Should they have vehicles at the ready? (But wouldn’t they also be ignition sources?)

She bemoaned the lack of a leak detection system and alarm. The terrain around the schools does not lend itself to evacuating small children. Sunoco had not been forthcoming with answers to many of WASD’s questions.

On cross examination, Sunoco tried to make the case that they were being unfairly singled out, because WASD had not asked the same questions of other pipeline companies in the area. Lonardi admitted this, but said that highly volatile liquids present safety issues that other pipeline content does not.

Rebecca Britton, who is one of the pro se complainants and therefore able to question witnesses, took the opportunity to ask a series of questions on redirect examination. She knows the situation well, because she is a member of the WASD school board. She took Lonardi through a series of questions that WASD had sent to Sunoco and Sunoco’s written responses. In its responses, Sunoco had claimed that many things WASD wanted to know were confidential. These included: how leaks are detected, where the nearest valve station is to the one at Shamona Creek, and how long it would take Sunoco to respond in case of a leak—all of these were “confidential”. WASD asked Sunoco to install a leak detection system with an alarm, at the Shamona Creek valve site. Sunoco refused, on the basis that there might be false alarms. WASD could install its own, Sunoco said, but that would require a qualified expert on staff.

Ultimately, the main conclusions of Lonardi’s testimony were that WASD does not have an emergency plan for a Mariner East leak, and Sunoco has not been helpful in devising such a plan.

Jerry McMullen’s testimony. Jerry McMullen’s home is adjacent to the Mariner East right-of-way in Exton. He is not opposed to pipelines generally, but Mariner East has raised new issues. He recounted a litany of problems associated with the pipelines:

• The repurposing and reversal of the Mariner East pipelines now in operation is exactly the type of change that the federal Pipeline Hazardous Materials Safety Administration warned against in a 2014 document.
• His neighborhood has many elderly residents and one who struggles with spina bifida. Many of them would have difficulty evacuating on foot.
• In his area, the pipelines run alongside malls, through apartment complexes and dense suburbs, and adjacent to the heavily-used county library.
• Sunoco had told residents that the pipelines would tunnel under their area, including the Little League field, but changed its plans when Aqua, the local water utility, raised the issue of potential problems with wells that provide a major source of drinking water. That meant far more disruptive construction techniques (mostly trenching).
• Some Sunoco pipes have been left exposed in a nearby stream, and the Mariner East pipelines run through a highly flood-prone area.
• Sunoco has been putting two Mariner East pipes (16-inch and 20-inch) inside a single 42-inch casing. There is not enough spacing between them to meet industry best practices.

On cross examination, the Sunoco lawyer asked if McMullen was familiar with the TEPCO NGL pipeline that also runs through his area (on the other side of the library). He was not. On redirect examination, Ginny Kerslake (an intervener in the case) asked if he knew that the TEPCO pipeline was only 6 inches in diameter—smaller than any of the Mariner East lines. He didn’t know that either.

Tom McDonald’s testimony. Tom McDonald, a resident of East Goshen in Chester County, talked about his experience in dealing with Wellington at Hershey’s Mill, a retirement community where his mother lives. Wellington is adjacent to the Mariner East pipelines.

Wellington has a section for independent living, a section for assisted living, and a section for skilled nursing. McDonald’s mother has lived in all three. She is currently in assisted living, on the second floor. She spends most of her time either in a wheelchair or in bed. She can walk short distances with a walker. She can’t get out of bed by herself.

McDonald talked about the process that would be required to evacuate his mother, and others like her, in the event of a pipeline emergency. There are about 35 residents on her assisted living floor. Based on the time required to get patients to an elevator, and the number that would fit (including their wheelchairs, walkers, and a few aides), McDonald estimated that, if his mother were in the middle group of evacuees (neither the first nor the last), it would probably be 20-25 minutes before she would get out. Once out, there would not be any practical route that did not cross the pipeline for her to get to a safe location. Nor would there be any way for first responders to get in without crossing the pipeline.

The clear implication of McDonald’s testimony was that no practical procedure existed for a quick evacuation of Wellington in case of a pipeline emergency.

The day’s proceedings ended shortly after 4pm—the streets were being cleared for a Halloween parade, and the building had to be closed. Chances are Day 2 will go much longer—and even so, it may not be possible to get through all the witnesses.