Back on September 11, the DEP issued an order calling for Sunoco to reroute the Dragonpipe (the Mariner East 2 pipeline, in this instance) farther away from Marsh Creek Lake. There had been a major spill of drilling fluid on August 10 that resulted in pollution of the lake.

Sunoco appealed the reroute order to the Environmental Hearing Board (EHB), which is the court of appeal for DEP decisions. Then, the company initiated a “supersedeas proceeding”, which is a short-cut hearing process that avoids the months-long process of “discovery” and evidence collection leading up to the standard EHB trial. In the supersedeas hearing, Sunoco argued that the reroute order should be overturned and drilling at the site should be restarted immediately; the DEP argued that its reroute order should stand.  

The judge in the case, Bernard Labuskes, Jr., has now made a decision. It doesn’t give a clear victory to either side. But Sunoco will certainly not be pleased with the outcome. Drilling cannot be resumed unless the DEP gives its approval to a “restart report” submitted by Sunoco, and that’s not likely to happen.

The judge’s opinion. In his opinion, Labuskes reviews the process by which horizontal directional drilling (HDD) is normally reviewed after a release of drilling fluid (an “inadvertent return” or “frac-out”). This is a procedure that Sunoco agreed to in resolving a previous EHB case, back in 2017. Sunoco must submit a “restart report” explaining how it will resume drilling while “adequately protecting public health, safety, and the environment”.

Following the Marsh Creek spill, Sunoco did submit a restart report, but the DEP neither rejected nor approved it. Instead, they issued the reroute order. In his opinion, the judge tells the DEP that they must first evaluate the restart report. They can only order a reroute if they find that the restart report is inadequate.

While the DEP is examining the restart report, drilling at the site remains halted. But Labuskes points out that Sunoco can, if it wishes, begin the process of applying for permits for the reroute.

Although it can’t resume drilling, Sunoco doesn’t have to grout the borehole immediately, which is part of what the DEP had ordered.

Sunoco’s weak arguments. The judge has harsh words for Sunoco’s arguments. He calls their filing an “end run” around DEP procedures. He also questions Sunoco’s logic. Sunoco is somehow trying to claim that there are only two possibilities: either it continues with the HDD it has started, or follows the exact reroute mentioned in the DEP order. (The reroute is actually a “technically feasible alternative” that Sunoco itself identified in a 2019 report.) Sunoco tries to show that resuming its HDD is the better alternative.   

Labuskes writes:

“Sunoco mistakenly believes that there are only two possible choices going forward: obtain a restart or do the reroute that was first identified in its 2019 reevaluation report. We have no reason to believe the [DEP] would refuse to consider other alternatives…. Indeed, the evaluation of other alternatives may be required if a restart of the HDD is not possible and Sunoco’s permit application for the reroute reveals that it cannot be performed in accordance with the regulations, and Sunoco wishes to complete its project.

Sunoco builds on its false dichotomy by arguing that, because the Department exceeded its authority in ordering a particular reroute, it somehow necessarily follows that it must be permitted to resume its HDD. This is simply wrong. It is a non sequitur.”

What’s next? The DEP must now review Sunoco’s restart report and decide whether to approve it. The net effect may well be that a full hearing on Sunoco’s appeal of the reroute order is just delayed further. It’s hard to imagine that the DEP will find, on reviewing Sunoco’s restart report, that it will “adequately protect public health, safety, and the environment”. If they reject the report and reissue the reroute order, then we are back to the same situation that prevailed on September 11.