All the briefs in the Safety 7 case have been filed, and the case is now in the hands of Judge Barnes. In my previous blog post I provided links for access to the 13 post-hearing briefs and 9 reply briefs, so that you can read them for yourself. In this blog post, I will focus on the key points of dispute in the case, and how both sides are arguing their positions. I will also list the main actions that the judge is being asked to take by one party or another.
Let me emphasize once again, in case any reader has forgotten: I am not a lawyer. I am a lay person doing my best to understand lengthy legal documents and to provide my impression of them to my readers. I am painfully aware that I can’t do justice to this long and complex case in a relatively short blog post. I hope you’ll explore what I have left out by reading the documents yourself. Links to all the documents mentioned here are provided in the previous post.
What are the most important questions to be answered? In the thousands of pages of testimony, exhibits, and briefs, it is easy to forget that there are (in my opinion) only a handful of really important issues in this case.
You might dispute my choice about which issues to classify as “really important” and which ones are less so. For example, I will not discuss the arguments about whether Sunoco’s training approach for first responders is adequate, or whether the company has done its duty in restoring landscapes it has disturbed. Those are important topics, but (for me) not as important as the six laid out in detail below.
Even in the issues I do discuss, I’ll be leaving out some of the details and some of the arguments. These are judgement calls.
What are “Section 1501” and “49 C.F.R. § 195.440”? Before getting into the details of the arguments, it is important to mention a couple of the key pipeline regulations involved. These are referred to as “Section 1501” and “49 C.F.R. § 195.440”.
The full name of Section 1501 is “66 Pa.C.S. § 1501”, and it is part of the Pennsylvania law governing public utilities. It begins: “Every public utility shall furnish and maintain adequate, efficient, safe, and reasonable service and facilities…” and it assigns the PUC responsibility for enforcing public-utility regulations. Much of the Safety 7 case revolves around whether Sunoco is offering a “safe” service in the context of this requirement. (The question of whether these pipelines actually qualify as a “public utility service” has never actually been resolved by the courts—but that’s another story.)
49 C.F.R. § 195 is the federal regulation governing the transportation of hazardous liquids by pipeline. It is issued by the Pipeline and Hazardous Materials Safety Administration (PHMSA), which is part of the Department of Transportation. Within 49 C.F.R. § 195, the section § 195.440 covers public-awareness programs. It lists the components that must be included in the program. Some are spelled out in the regulation, and others are incorporated by reference to a standard published by the American Petroleum Institute (API RP 1162). You can read full text here. Several aspects of the Safety 7 case hinge on whether Sunoco’s public-awareness efforts comply with these requirements (and, indeed, whether it is even possible for Sunoco to comply with them, given the safety issues surrounding the pipelines).
Six Key issues in the Safety 7 case
Here are the questions that the judge most needs to resolve, in my opinion.
1. Has Sunoco failed to maintain its pipelines properly? Attorney Bomstein, writing for the Safety 7 plaintiffs, argues that Sunoco’s “Integrity Management Plan” (IMP, a plan which is supposed to safeguard against leaks) is faulty, and the company doesn’t follow it anyway. The focus is on corrosion control: Sunoco is supposed to use the technology of cathodic protection [link to post] and internal inspections. However, federal inspectors have found that Sunoco has failed to follow its own plan. Furthermore, there are gaps in Sunoco’s records, and signs that Sunoco has destroyed evidence from accident scenes that might have shown corrosion problems.
In response, Sunoco claims that its IMP is appropriate and is faithfully followed. It presented three witnesses to that effect. It claimed that the Safety 7 expert witness, Dr. Zamanzadeh (“Dr. Zee”), had only reviewed about 10,000 of the 30,000+ pages of documents it had submitted in evidence. Under cross examination, though, it turned out that Dr. Zee’s team had reviewed all of them (though he himself had not) and that Sunoco’s three “experts” had not reviewed any of them. Instead, they depended on Sunoco’s assertions that everything was fine.
2. Is Sunoco’s public-awareness program fundamentally flawed? The Safety 7 complainants argue that Sunoco’s public-awareness program fails to warn the public of the hazards and consequences of leaks. The information Sunoco has provided to the public does not do so. For example, a 2018 flyer does not mention any hazards or consequences at all. A Sunoco witness testified that the company had made a decision not to notify the public about the possibility of burns. Indeed, none of the materials warned of burns or fatalities.
The only information given the public about what to do in case of a leak is to leave the area on foot, avoid open flames or sources of ignition, and call 911 from a safe location. In some materials, there are suggestions to walk upwind and not to use cell phones. But there is no adequate explanation of how to know if a leak has occurred, how those unable to evacuate on foot should proceed, how to determine wind direction, or when it is safe to use a cell phone to call 911. These are violations of various Pennsylvania requirements, as well as the federal 49 CFR § 195.440 rules.
These same issues are at the heart of the Andover Homeowners’ brief and Chester County’s brief.
Sunoco contends that its public-awareness programs meet all the requirements of the law. They claim that the public awareness issue is a “back-door” effort to get at pipeline siting, because some parties involved claim that there is no way for Sunoco to offer a satisfactory plan for evacuation in its public-awareness program, as it is required to do.
(Sunoco is correct to be concerned about this, but I don’t believe it is an underhanded criticism. If there can be no legally compliant public-awareness program because there is no plausible evacuation plan, isn’t that something that Sunoco needs to fix?)
3. Is Sunoco’s siting of the pipelines too dangerous to the public? The Flynn complainants note that Section 1501 requires that a Pennsylvania public utility must provide service that is “safe and reasonable”. Given Sunoco’s failure to properly maintain its pipelines and its failure to provide adequate warning facilities, they argue that running a pipeline of highly explosive materials next to a house or other occupied structure violates that requirement. A serious leak may be unlikely, but serious leaks do happen and if one happened with people nearby, injuries and deaths would occur—likely in the first five minutes, before any emergency responders could possibly arrive.
Sunoco responds that the PUC has no authority over where pipelines can be sited. It also asserts that, because there are PHSMA regulations concerning how to operate pipelines in “high consequence” (densely populated) areas, it is perfectly legal for Sunoco put them where it likes. The company claims that the complainants have to show the pipelines are not “safe”, within the meaning of Section 1501, and that has not been shown. The company also claims that it is not enough to show how bad the consequences of a leak would be; the complainants have to perform a calculation to show what the probability of a leak would be, and they haven’t.
4. Are Sunoco’s construction practices legal? The Safety 7 complainants argue that Sunoco’s construction methods (particularly horizontal directional drilling, or HDD) have led to contamination of drinking water and wells, and have spilled industrial waste at many locations. This violates the “safe and reasonable” requirement of Section 1501. In addition, HDD has triggered sinkholes at numerous locations (including in people’s yards, next to highways and train tracks, and in a children’s soccer field), and flooding at others. In some cases, active pipelines were exposed, threatening their integrity.
Sunoco argues that these are environmental issues, and that the PUC has no jurisdiction over any environmental issue, because that is the sole responsibility of the Department of Environmental Protection. It claims that the “earth features” (Sunoco avoids the use of the word “sinkhole”) present no safety risk. It claims that the drilling mud spills (“frac-outs” or “inadvertent returns”) are permitted under the permits Sunoco secured from the DEP. And it claims that the PUC has no jurisdiction over drinking-water issues, which should be referred to the DEP.
In their reply brief, the Safety 7 complainants show that multiple departments (including the PUC) regulate environmental issues in Pennsylvania. The PUC has done so in the past, and so it is capable of doing so now.
5. Does the PUC have the authority to decide the key issues in this case? The Safety 7 complainants make a strong argument that the “safe, reasonable, and adequate” requirements of Section 1501 give the PUC the authority to take whatever action is necessary in this case. They show that the language of opinions in previous cases make this clear. Sunoco argues that siting, construction, and environmental issues are all outside the scope of the PUC’s jurisdiction; and in any case, Sunoco has not violated Section 1501.
6. Would shutting down the pipelines unduly harm Sunoco? One of the things the Safety 7 complaint asks for is the PUC to shut down the pipelines if they cannot be operated safely. Sunoco has claimed that a shutdown would cause great economic hardship (to Sunoco, to its customers, and to the residents of Pennsylvania). It provided several witnesses to that effect. On cross examination, it became clear that many of the claimed benefits were based on assumptions for which no evidence could be presented, and Sunoco had made no attempt at all to estimate the costs to Pennsylvanians imposed by Mariner East.
What choices does the judge have? The various parties have requested various forms of “relief”. The judge must review the evidence and decide which, if any, are justified. Here are the main requests of the Safety 7 complainants:
- Appoint an independent investigation of the integrity of ME1 and the 12-inch workaround pipeline.
- Order temporary cessation of operation of ME1 and the 12-inch workaround pipeline until their integrity has been confirmed.
- Restrict Sunoco’s “Certificates of Public Convenience” (CPCs) so that they no longer include the Mariner East pipeline system. (The CPCs are the documents that certify that the company is a public utility and can use eminent domain to seize property). Sunoco’s other pipelines would not be affected.
- Require Sunoco’s public awareness program to be brought into compliance with the law; suspend Mariner East operations until this is done. (This is essentially the same relief as the Andover Homeowners are requesting, and similar to that requested by complainant Laura Obenski.)
Other parties had other requests, notably:
- An automated warning system to alert the public to leaks (requested by several school districts, West Whiteland Township, and Chester County)
- Downingtown Area School District requests that the valve site across from Shamona Creek School be relocated; Rose Tree Media School District requests that the valve site near Glenwood Elementary be relocated.
- Chester County requested a long list of relief items, including addition of odorants and dye to materials carried in the pipelines, quarterly public meetings to answer pipeline questions, and specific evacuation and shelter-in-place plans for various structures and areas.
The big question, of course, is whether the judge will find the issues raised to be serious enough to warrant shutting down the pipelines. I am sure Sunoco will be happy to tinker with its public awareness program, discuss possible warning systems, and perhaps even relocate some valve sites, as long as the HVLs keep flowing.
In the end, I imagine the key issue will be whether two years of hearings and piles of evidence are sufficient to convince the judge that Mariner East represents enough of a threat to human life that it can’t be allowed to operate. It certainly seems to me that the evidence clearly shows that threat (but my opinion doesn’t count).
And whatever the judge decides, it will still have to be confirmed by the five commissioners of the Public Utility Commission. The story doesn’t end there, either: if Sunoco doesn’t like the results it gets from regulators, it routinely appeals them to the courts.
If you appreciate what the Safety 7 case is doing, make a contribution. This case, now pending before the PUC, is the most important opportunity to stop the Mariner East project from putting thousands of lives at risk across Pennsylvania. Your contribution, whether it is $10, $100, or $1,000 is an important way to show your support. Click here to contribute.