Wilmer Baker (cropped)
Wilmer Baker (Photo: Cumberlink)

Wilmer Baker is among the few brave souls who have filed “pro se” (with no lawyer) complaints with the Public Utility Commission. The Administrative Law Judge handling his case, Elizabeth Barnes, has now rendered her opinion. The result is a mixture of good and bad news.

The bad news. First the bad news: Baker had a number of complaints concerning the pipeline materials and construction. A welder himself, he thought the steel used was substandard, he thought a non-standard method of reinforcing the ends of pipeline segments had been used, and he thought some of the pipe had been illegally imported. He wanted the bad pipe dug up and replaced. But the judge was convinced by Sunoco’s witnesses that the pipe and construction techniques were appropriate.

Some potentially better news. Baker also wanted a warning system installed or an odorant added to the highly-volatile liquids being transported. Here, the news was a little better: the judge said that these issues would be addressed in the rule-making process resulting from the public comments the PUC requested last summer.

The good news: the judge confirms inadequacy of Sunoco’s public awareness efforts. The one issue where Judge Barnes sided with Baker completely was the need for better public awareness and emergency planning.

She writes: “Although Sunoco’s witnesses have testified that they have a public awareness program that engages the community, utilizing a variety of methods, including meetings, mailings, and specialized training…, the evidence in this case is substantial to show there have been insufficient public outreach meetings in Cumberland County…. Sunoco is avoiding media presence and potential litigation and has cancelled at least one public meeting at Lower Frankford Township and another meeting in the Borough of Carlisle was cancelled for unknown reasons. Sunoco’s excuses do not constitute good cause for cancellation, especially on short notice within 24 hours of a scheduled public meeting.”

She talks about the importance of good communication:

“Communication benefits not only the public, but also the utility, as a well-informed public understands pipeline markers and is less likely to accidently damage a pipeline or its appurtenances. The utility benefits from a well-informed public that knows the phone numbers or websites to contact to notify the operator of witnessed leaks, exposed pipe, subsidence events, damaged equipment, etc. along its pipeline right-of way. An informed public and well-trained emergency officials reduce the likelihood of injury or damage to everyone and all property involved.

For example, parents need to be educated on what actions they should take if there is a leak between the parent and his/her child(ren) at school. School districts need to know whether they should shelter in place, shut down air handlers, or whether they should evacuate and in what direction in the event of leaks near their schools. Hence, the utility owes a duty to inform and educate those members of the public residing, working, and congregating near HVL pipelines owned by the utility….”

What Sunoco must do. After listing Sunoco’s deficiencies in public information and emergency preparedness, Judge Barnes writes: “Accordingly, I find specific circumstances warranting an Enhanced Public Awareness Program taking into consideration the probable distance from the ME1, ME2, and ME2X within which one might sustain a first or second degree burn as a result of a rupture and ignition of HVLs on one of the pipelines. Sunoco should expand its safety pamphlet coverage beyond 1,000 feet from the pipeline, and consider not only notifying schools within the buffer zone, but also to work with school districts to notify parents of students attending those schools as to what to do in the event of an emergency.”

She continues: “As there is heightened public sensitivity to pipeline emergencies and significant right-of-way encroachments including new construction occurring in Upper and Lower Frankford Townships, Cumberland County, … the pipeline operator is directed: 1) to contact the Lower Frankford Township Supervisors and Cumberland County Commissioners; 2) to schedule a public awareness/education meeting to be held in Cumberland County; and 3) absent exigent circumstances, to make an appearance at the scheduled meeting. The pipeline operator is further directed, in the public interest, to provide additional training to emergency officials/responders in Cumberland County as requested in a timely manner in addition to its CoRE and MERO training.

Additionally, Sunoco is directed to file within 90 days of a final order a plan to enhance its public awareness and emergency training plans and record keeping including but not limited to addressing: 1) the broadening of communication coverage areas beyond 1,000 feet; 2) shortening intervals for communications; 3) use of response cards and social media; 4) supplemental program enhancements to emergency training programs; 5) internal or external audits to evaluate the effectiveness of its programs; and 6) corrective action plans to address any insufficiencies or weaknesses revealed through its evaluations and audits.”

Judge Barnes also requires Sunoco to pay a trivial fine of $1,000. (The low amount is based on the assumption that Sunoco’s public awareness failings could be just an administrative oversight.)

The Commissioners have the last word. It is important to keep in mind that the Judge Barnes’ ruling is not final. The full Commission, which has five members, must still vote to confirm it. In the past, they have sometimes overruled Judge Barnes in Sunoco cases.

The importance of this case. It is significant that Judge Barnes found Sunoco’s public awareness program lacking. The remedies Barnes calls for (if agreed to by the full Commission) will make people all along the pipeline route more aware of the dangers, and will presumably make first responders better able to deal with emergencies.

Perhaps even more important, Sunoco will be forced to be more explicit about what actions to take in an emergency, and they will have to acknowledge the size of the area “within which one might sustain a first or second degree burn as a result of a rupture and ignition of HVLs on one of the pipelines”. They have never been willing to do either of those things.

The “Safety 7” case, which is underway before the PUC, is based on the idea that Sunoco has not been able to come up with a realistic emergency plan. If Sunoco has to acknowledge the size of the “blast zone” and has to specify what residents must do in the event of a leak (as Judge Barnes is requiring), and if Sunoco’s response is weak, the Safety 7 case will be strengthened.

Finally, it is important to acknowledge what Wilmer Baker has accomplished, given that he has no legal training, does not own a computer, and has no access to the internet. With the help of friends (most notably his neighbor Ralph Blume) he has managed to navigate a highly legalistic regulatory process and score an important win.

It also needs to be said that Judge Barnes has recognized how badly the PUC’s formal complaint process handles safety complaints from ordinary citizens, and she has made allowances. If she had not, Baker’s case would have been thrown out early in the process. We will soon find out if the five members of the Commission are as wise as Judge Barnes.