Judge denies emergency petition for Mariner East shutdown

Suit brought by seven residents fails on all four requirements

Jon Hurdle

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Jon is an experienced journalist who has covered a wide range of general and business-news stories for national and local media in the U.S. and his native U.K. As a former Reuters reporter, he spent several years covering the early stages of Pennsylvania’s natural gas fracking boom and was one of the first national reporters to write about the effects of gas development on rural communities. Jon trained as a general news reporter with a British newspaper chain and later worked for several business-news organizations including Bloomberg News and Market News International, covering topics including economics, bonds, currencies and monetary policy. Since 2011, he has been a freelance writer, contributing Philadelphia-area news to The New York Times; covering economics for Market News, and writing stories on the environment and other subjects for a number of local outlets including StateImpact. He has written two travel guidebooks to the European Alps; lived in Australia, Switzerland, Israel, and Saudi Arabia, and visited many countries including Ethiopia, Peru, Taiwan, and New Zealand. Outside of work hours, Jon can be found running, birding, cooking, and, when weather permits, gardening in the back yard of a Philadelphia row home where he lives with his partner, Kate.

Marie Cusick / StateImpact Pennsylvania

Construction on the Mariner East 2 pipeline has faced myriad problems, including damaged water supplies and sinkholes in a residential neighborhood in Chester County.

December 11, 2018 | 12:52 PM

Updated: 2019-01-17 16:40:07

Update, Jan. 17: The Public Utility Commission voted 5-0 to uphold the administrative law judge’s decision that rejected a request for an emergency shutdown of Mariner East 2.

Reported previously:

A judge on Tuesday rejected a petition by seven residents of Delaware and Chester Counties for an emergency shutdown of the Mariner East pipelines.

Elizabeth Barnes, a Public Utility Commission administrative law judge, said the residents failed to show that there was a clear and present danger to the public from the construction and operation of the pipelines; that they were entitled to immediate relief; that injury to them would be irreparable if not granted; and that the shutdown they sought would not harm the public.

The petition was the latest attempt by opponents of the multibillion-dollar Mariner East 2 to halt it before it goes into service, as scheduled, by the end of 2018. The Mariner East project is made up of three parallel natural gas liquids lines — the Mariner East 1, the Mariner East 2, and the Mariner East 2X. Mariner East 1 is already carrying natural gas liquids.

The plaintiffs had asked for the emergency shutdown while Barnes reviews their request to permanently shut down the lines. The residents’ formal complaint at the PUC alleges public safety is endangered by the pipeline.

Barnes wrote that the plaintiffs “presented no evidence regarding the likelihood, i.e. risk, of a fatality occurring due to an accidental leak on any of the Mariner East Projects.”

She also dismissed their arguments that the public was endangered by valve sites where horizontal pipes entered or left the ground, or where the Mariner East pipelines are co-located.

Although one valve site is about 100 feet from a restaurant, that doesn’t represent an imminent threat to public safety, she wrote.

“This alone is insufficient to establish a clear and present danger, or an imminent safety risk at that valve site, or any other location along the ME1 or ME2 pipelines warranting the requested injunctive relief.”

In rejecting the petitioners’ arguments that they would be irreparably injured if relief is not granted, Barnes said they had conceded that the risk of fatalities is small, and so they failed to show that they would be harmed irreparably by fatalities, personal injuries or loss of property ahead of a full hearing on the complaint.

And she sided with Sunoco on the issue of whether the public would be harmed if she granted the emergency petition. The company, supported by Range Resources, offered “credible evidence” that it would be financially hurt if the petition was granted, whereas the petitioners failed to provide enough evidence of the likelihood of a catastrophic event to meet the standard on public injury, the judge wrote.

Activist groups, especially in Philadelphia’s densely populated western suburbs, say the pipelines will be a bigger risk to public safety than those carrying natural gas or oil because of the highly explosive nature of the natural gas liquids – ethane, butane and propane – that will be carried by the new lines.

The complaint accused Sunoco, a unit of Energy Transfer, of failing to tell residents how to protect themselves if there’s a leak, and it mocked the company’s instructions not to use possible ignition sources such as cars and cell phones in the event of an escape of NGLs.

The document asked how emergency officials would be able to inform thousands of people of a pipeline incident if they should not be using their phones. And it said the company’s instructions to walk upwind of a leak would not help immobile residents like the elderly or infirm.

Residents’ fears were fueled when Sunoco said last summer it would repurpose a 1930s-era 12-inch pipeline with a history of leaks as a temporary section of Mariner East 2 in Delaware and Chester counties while the new pipeline is completed.

Sunoco continues to say that it meets all state and federal safety requirements, and that the 12-inch line had a $30 million upgrade in 2016.

In May, Barnes halted construction of the two new Mariner East pipelines, plus the operation of the existing Mariner 1, at West Whiteland Township in Chester County. In her response to an emergency petition by State Sen. Andy Dinniman (D-Chester), the judge said the pipelines posed an “imminent risk” to the public, and they should be shut down until the PUC confirmed their safety.

Three weeks later, the full PUC partially overturned her ruling, allowing Mariner East 1 to resume operations, but upholding the ban on ME2 construction. That ban was lifted in August.

Caroline Hughes, a plaintiff from West Chester, said after the ruling that she had expected the emergency petition to be a heavier lift than the formal complaint, which she said will give the petitioners more chance of success.

“That is where we will be able to present our case in its entirety, and without the additional pressure of making the case for emergent relief,” Hughes said. “I believe that the formal complaint will be more successful.”

She said the plaintiffs’ formal complaint will be helped by a recently published Delaware County Council study on the safety risk of ME2, which was not part of the emergency petition. The study said that a worst-case explosion of natural gas liquids from the pipe would kill anyone within a mile of a rupture but that the chances of dying in a pipeline incident are less than from a car crash.

But Michael Bomstein, an attorney for the petitioners, said there will now be discussion about how or whether to move ahead with the formal complaint, based on what the ruling suggests about the outcome of the full case.

On an initial reading, Bomstein said the judge’s reasoning seems to be based on the idea that petitioners can’t show an emergency unless they also show the risk of an event occurring, an approach that the petitioners deliberately avoided.

“We were very clear at the outset of our case that we were not here to talk about whether something is likely,” he said. “We were talking about if something occurs, it could be catastrophic, and we believe we put on competent evidence of that.”

Bomstein said the judge may have been influenced by the full PUC’s decision in June to partly overturn her ruling a few weeks before that halted pipeline construction and briefly shut down operation of Mariner East 1 in West Whiteland Township, Chester County.

“She looked at the reasoning of the commission at the time they overruled her, and I think she had to consider that in deciding what the applicable standards are,” Bomstein said. “It was her respect for precedent that caused her to do this.”

The Pennsylvania Energy Infrastructure Alliance, which advocates for Mariner East and other pipelines, said the ruling is the latest evidence that the project is safe.

“The administrative law judge’s ruling is the latest in a string of court decisions at every level over the years to find that Mariner East is legally permitted and that the builder is in compliance with safety requirements,” said Kurt Knaus, a spokesman for the group, in a statement. “The facts are clear, this is settled law, and the case is closed. It’s time to end the ideological challenges and put this project to work for Pennsylvania.”

Sunoco spokeswoman Lisa Dillinger welcomed the ruling and said the pipeline — which has been frequently delayed by legal, technical and environmental problems – is still on schedule to meet its latest startup target of the year’s end.

“We are in the final stages of completing the construction required to put the line in service, which we anticipate will be by the end of the year,” Dillinger said.

Sen. Dinniman, a persistent critic of Sunoco, said the ruling shows that it’s hard for citizens to challenge the energy industry at the PUC, “even when it comes to issues of public safety.”