Sunoco urges PUC to overturn judge’s order halting pipeline construction in Chester County 

  • Jon Hurdle

Marie Cusick / StateImpact Pennsylvania

Mariner East 2 pipeline construction in Chester County.

Sunoco on Friday urged Pennsylvania’s Public Utility Commission to overturn a judge’s order that halted construction of two new pipelines in a Chester County township and suspended operation of an existing pipeline on the same right-of-way. 

In a legal filing, the energy company condemned the ruling by Administrative Law Judge Elizabeth Barnes on May 24 which granted an emergency petition by state Sen. Andy Dinniman (D-Chester County) calling for the pipeline construction and operation to be stopped in West Whiteland Township until the PUC determines it is safe. 

The company argued there was no basis for the ruling given that the PUC determined on May 3 that the existing pipeline, Mariner East 1, was safe. That decision lifted a nearly two-month shutdown that PUC imposed after sinkholes appeared at a construction site on Lisa Drive, a suburban development where the new pipelines – Mariner East 2 and 2X – are being built alongside the older line. 

In a 35-page filing, Sunoco said Judge Barnes’ ruling creates a dangerous precedent for any public utility in Pennsylvania by allowing petitioners such as Dinniman to seek emergency relief without presenting credible evidence to support their claim.

“To be awarded emergency relief, the petitioner need not offer any credible evidence or properly-supported expert testimony that the continued operation of the public utility is unsafe, or that an emergency exists, but instead can rely on hearsay, expressions of concern, speculation, or past, unproven notices of violation issued to the public utility unrelated to safety,” the filing said.

The ruling removes a burden on the petitioner to prove that a utility is unsafe and instead requires the utility to prove that it is safe, the company said.

“It is a dangerous and unlawful precedent for the Commission to set, which will inevitably lead to a flood of emergency petitions where no actual safety emergency exists,” it said.

It urged the PUC to decide the issue quickly and to consider holding a special public meeting to reach that decision.

Dinniman says the company did not plan for unstable geology in the township, and has suffered the consequences including the sinkholes and a number of private wells that were contaminated when Sunoco punctured an aquifer when drilling last summer. 

But Sunoco said West Whiteland’s geology will support different means of pipeline construction without risking subsidence or endangering the integrity of Mariner East 1 that operates on the same right of way.

The company cited the testimony of David Demko, a geologist who is responsible for ME2 construction in West Whiteland, who told the PUC’s recent hearing on Dinniman’s petition that the project is safe and does not create a safety risk for ME1.

Range Resources, another energy company, filed a supporting brief on Thursday, arguing that the public will be harmed by the renewed shutdown of Mariner East 1, and urging the full PUC to immediately reverse its own judge’s ruling. 

Range called the ruling “irregular and improper,” and said it ignores “substantial evidence” that ME1 is safe. 

Range’s filing said the judge had questioned whether ME1 meets accepted engineering standards, but that she presented no evidence to support that concern. “The order’s conclusions appear to be, at best, based solely on extrajudicial facts and/or hearsay,” Range said. 

In its initial comments last week, Sunoco said the decision was a “significant departure” from the law and the process that PUC uses in making decisions. Judicial decisions should be based on the law, not on “conjecture and extra-judicial claims” that will “upend Pennsylvania’s entire regulatory environment,” it said. 

Administrative law judges like Barnes hear contested matters before the PUC, and issue written decisions recommending resolutions to the disputes. 

The ruling was the latest blow to the cross-state project that has been plagued with legal, environmental and technical problems since it started construction in February 2017. The latest shutdown is the third ordered by judges or regulators during that time. The project has been repeatedly delayed, but the company says the new hiatus does not alter its plans to start operating the line in the third quarter.

When complete, the new pipelines will carry propane, ethane and butane some 350 miles from southwest Pennsylvania and Ohio to a terminal at Marcus Hook in Delaware County, where most of the fuel will be exported. Some propane will be taken from the line to supply domestic markets. The company previously estimated the construction cost for Mariner East 2 at “more than $2.5 billion.” It has not disclosed the updated cost, said company spokeswoman Lisa Dillinger. 

The judge ordered the PUC to conduct further study on all three lines to ensure that there would be no “catastrophic event” at Mariner East 1, which carries natural gas liquids. 

She also strongly criticized Sunoco, saying it had rushed ahead with the project in an “apparent prioritization of profit over the best engineering practices,” and had failed to give the public detailed instructions on how to respond to any leak of gases from the line. 

In his own brief, Dinniman urged the PUC to uphold Judge Barnes’ ruling, saying she was right to identify an “imminent risk to the public” from ME2 construction.

In a statement issued before Sunoco filed its response, Diniman said he would fight Sunoco’s appeal. 

He said the ruling and its potentially far-reaching consequences for pipeline regulation in Pennsylvania are the result of the company’s failure to respect public safety, the environment, and private property rights. 

“Sunoco and its parent company Energy Transfer Partners have their own worst enemy. And they only have themselves to blame for making the Mariner East Pipeline a case study of how and where not to install a hazardous material pipeline,” he said. 

Judge Barnes certified her ruling for review by the full PUC, which has 30 days from the date of the ruling to decide whether to accept, reject or modify it. The commission is not expected to hold further hearings or oral arguments on the matter, according to PUC spokesman David Hixson. 

The commission’s next scheduled public meeting is on June 14. The agenda for that meeting has not yet been published, Hixson said on Wednesday, but the timing falls into the period when PUC must decide on the outcome of its review. 

Hixson said it’s not unusual for the full commission to modify or reject a recommended decision by an administrative law judge. The commission’s decision is appealable to the Commonwealth Court. 

Sunoco’s response