Sunoco is appealing the Department of Environmental Protection’s January 3 order to halt construction on the Mariner East 2 natural gas liquids pipeline. Sunoco filed the appeal with the Environmental Hearing Board on February 2, calling the DEP’s order “arbitrary, capricious, unreasonable, vague, an abuse of discretion, improper, not supported by substantial or accurate evidence, contrary to fact and law…”
It’s the latest move in a legal and regulatory battle over the permitting and construction of the 350-mile long natural gas liquids pipeline that cuts through 17 counties, 2,700 properties, and more than 1200 streams or wetlands.
Clean Air Council executive director Joe Minott says the DEP is within its right to halt construction.
“Sunoco is in a weak position trying to argue the Department somehow overstepped its bounds by pointing out what has been happening on the ground and taking action to protect the public and the environment,” Minott said in an email.
Construction began in February 2017, which resulted in drilling mud spills along the cross-state line, and was first reported on by StateImpact when horizontal directional drilling resulted in well water contamination for residents of a Chester County community last July. Further reporting revealed even more spills. A court order last summer directed the company to re-evaluate geology at more than 60 sites. The DEP has issued 33 separate notices of violations to the company, the most recent on January 28.
DEP’s stop work order resulted after more violations occurred, including impacted private water wells and unpermitted activities. When issuing the stop work order, DEP Secretary Patrick McDonnell said the order would remain unless the company could insure it would comply with the original permits.
“Until Sunoco can demonstrate that the permit conditions can and will be followed, DEP has no alternative but to suspend the permits,” said DEP Secretary Patrick McDonnell in a statement January 3. “We are living up to our promise to hold this project accountable to the strong protections in the permits.”
DEP directed the company to submit details on how it plans to prevent drilling mud spills – or “inadvertent returns” – that have challenged the project since construction began last February.
It also instructed the company to address impacts to private water wells in Silver Spring Township, Cumberland County, and to identify all “in progress and upcoming construction activities.”
A spokesman for DEP says the department will not comment on the appeal.
Sunoco’s legal challenge states the DEP “improperly defined” horizontal directional drilling, “mischaracterized” its drilling activities in certain locations, lacks the legal authority to require approval of a change in construction techniques, and “mischarachertized” inadvertent returns as industrial waste.
“Inadvertent returns” is the term used to describe drilling mud leaks into an aquifer or waterway. Drilling mud is a non-toxic bentonite clay used as a lubricant and coolant. If a significant amount enters a wetland, it can smother small aquatic life. It can also turn clear well water muddy.
Rich Raiders, an eminent domain attorney for landowners battling Sunoco’s Mariner East 2 pipeline says his clients are thinking about intervening in the case.
“It’s very disappointing that rather than filing responses to the department’s concerns, Sunoco filed this appeal instead,” said Raiders. “Let’s face it, I don’t thing the DEP was kidding when they took this step. They wanted Sunoco to pay attention.”