Sunoco begins a multi-front legal attack on the Safety 7 case

Sunoco is trying to chip away at the Safety 7 case. This blog post explains how they are going about it, and (at the end) what you can do to help make sure the case moves forward.

There can be no doubt that the “Safety 7” case before the Public Utility Commission is the most serious regulatory challenge the Dragonpipe (Mariner East pipeline system) has yet faced. This case, brought by seven residents of Chester and Delaware County, and consolidated with three other cases, contends that Mariner East should be shut down, perhaps permanently.

With the final hearings in the case looming (they are scheduled for late September and early October), Sunoco’s lawyers are trying to undermine various aspects of the case before it goes to trial.

Unworkable plans for the public, shoddy maintenance. The key issues in the case revolve around safety: whether there is a credible emergency plan in the event of a leak, and whether the maintenance of the 80+ year-old Mariner East 1 (this is called ME1’s “Integrity Management Plan”) has been done in a way that complies with the law.

Sunoco’s position on both issues is weak. There is no credible emergency plan for the public: the company has only offered the advice to “walk half a mile uphill and upwind” in the case of a leak. It has not explained how the very young, the very old, and the infirm could actually do that. It has never shown how the existence and location of a leak could be detected in a timely manner, nor how residents in the area could be warned in time to do them any good.

As for maintenance, Sunoco’s maintenance of ME1 was called into serious question by the PUC’s investigation of the ME1 leak near Morgantown. That leak was due to corrosion, the corrosion was due to lack of proper maintenance, and the PUC’s investigators suggested that the same problems could exist anywhere across hundreds of miles of ME1 pipe dating from the 1930s. The ensuing federal investigation reached much the same conclusion.

So it is no wonder that Sunoco’s lawyers are doing whatever they can to derail the Safety 7 case. They launched three major legal forays in July.

First, harass the complainants. In June, someone accessed the “Sharefile” system of Manko Gold, Sunoco’s Pittsburgh law firm. They logged in twice, once with the First/Last Name “Fuck You” and the email address “fred@fucksunoco.com”, and once with the First/Last Name “Mankogold Endangerschildren” and the email address “kaboom@milewideblastradius.com”.

One of the Manko Gold attorneys contacted the attorney for the Safety 7 complainants, asking him to determine if one of the complainants had been the source of the mischief. He checked with them, found that none had been, and reported this to Manko Gold.

That, however, was apparently not sufficient for Manko Gold. The firm is now asking the Safety 7 judge, Elizabeth Barnes, to compel each of the complainants to submit sworn affidavits that they admit or deny seven specific statements, beginning with admitting/denying that they were the person responsible for the logins and ending with admitting/denying that their IP address is the specific one used for logging in. All of this has nothing to do with the facts of the case. As stated by the Safety 7 lawyer, it is clearly an attempt to bias the judge against the complainants (and, I would add, to intimidate the complainants).

You can read the details of this sleazy business in Sunoco’s request to the judge and in the Safety 7 response. The Judge Barnes has not yet made a ruling on the request.

Second, try to get the maintenance issues thrown out. Later in July, Sunoco filed a motion for a “partial summary judgement” on the issues of “Integrity Management, Corrosion Control, and Cathodic Protection”. Sunoco’s lawyers want these issues removed from the case because of insufficient evidence. Their argument is based largely on the written testimony of Dr. Zee (the Safety 7 expert witness on corrosion), submitted this past spring.

In his written testimony about the corrosion of ME1 that resulted in the Morgantown leak, Dr. Zee states that more investigation is needed to determine the exact cause of the corrosion and its likely extent. Sunoco seizes on this, claiming that because more investigation is called for, there is “no evidence” to confirm the corrosion or improper maintenance. Sunoco claims that Dr. Zee’s testimony does not present “evidence of a material fact in dispute that would show the necessary violation and harm resulting therefrom to obtain the injunctive relief Complainants seek”.

Because of this alleged “lack of evidence”, Sunoco wants the issues of corrosion and improper maintenance removed from the case. It is hard to credit Sunoco’s claim of “lack of evidence”, given that the PUC’s own Bureau of Investigation and Enforcement found that corrosion was the reason for the Morgantown failure, and this was confirmed by investigators from PHMSA (the federal office responsible for pipeline safety).

You can read Sunoco’s motion here. The judge has not yet ruled on this issue yet, either.

Third, try to claim that Mariner East is not “unsafe” in terms of the law. Finally, on July 28, Sunoco filed a motion that goes to the heart of the issue of public safety. Sunoco is claiming, based on precedents, that the Safety 7 complainants can’t claim there is a public safety violation based solely on the consequences of a leak. (Sunoco seems willing to acknowledge that a serious leak could be catastrophic.) The company claims that a pipeline could only be deemed “unsafe” if both the consequences and the likelihood of a leak are specified.

Sunoco writes: “The potential consequences of a catastrophic release, without evidence of the likelihood of that release occurring, does not render ME2 unsafe within the meaning of [the relevant law].” In other words, whether the pipeline is unsafe or not in lay terms is not relevant. The company claims that a calculation of probability must be part of the case that the Safety 7 complainants make. Since it is not specifically part of their case, Sunoco alleges (and requests a ruling from the judge) that the case does not meet the legal requirements to show that Mariner East is not safe. Therefore, according to Sunoco, the safety issue should be removed from the case.

You can read Sunoco’s motion here. The judge has not yet ruled on it.

What about public awareness and emergency procedures?  Although Sunoco is trying to chip away at other aspects of the case, it has not yet attempted to attack a key issue: whether its public awareness program and emergency plans are adequate. Perhaps the company will try to argue in the final hearings in September/October that just presenting a plan—even if the plan is unworkable—meets the letter of the law. Or perhaps we will see additional legal moves before then.

In any case, Sunoco is clearly worried, and it is telling its legal team to attack as hard as they can.

What you can do. The Safety 7 team is working hard to prepare for the September/October hearings, and the attorney is working pro bono, but funds are still needed to pay for the essential expert witnesses who will provide the technical evidence needed to make the case. The most important single thing you can do now is make a contribution in support of the case. There is a GoFundMe site for this purpose:

https://www.gofundme.com/f/support-the-Safety-7-Halt-Mariner-East

Every contribution helps, whether it is $5 or $500. Please contribute right now!