Wilmer Baker’s home in Lower Frankford Township is within the 1,000-foot safety radius of the Mariner East pipeline route. (Photo by Jason Malmont, The Sentinel)
By Zack Hoopes, The Sentinel
Dec 23, 2019
A ruling issued Wednesday in Wilmer Baker’s case against Sunoco Pipeline gives the Cumberland County resident a partial victory in his effort to get the Mariner East pipeline operator to respond to his safety concerns.
The ruling was issued by Administrative Law Judge Elizabeth Barnes, who heard the case on behalf of the Pennsylvania Public Utilities Commission, under whose jurisdiction Sunoco falls.
The ruling is an initial decision, and the PUC could modify the advisory order at a subsequent commission meeting pursuant to the evidence and legal statutes Barnes outlined in her ruling.
Barnes sides with Baker when it comes to his claims about Sunoco’s inadequate safety outreach, writing that Baker succeeding in “showing that [Sunoco’s] public awareness outreach in Cumberland County is not meeting regulatory requirements.”
“I consider this a victory that she’s publicly acknowledging there are problems,” Baker told The Sentinel on Friday..
In an email, Lisa Coleman, spokesperson for Sunoco’s parent company, Energy Transfer, said the company is “currently processing the information in the initial decision to determine how it relates to our public awareness programs that are in place, including those in Cumberland County.”
Otherwise, Barnes’ opinion finds that Baker’s claims regarding the origin and quality of the steel used in the Mariner East builds are either unfounded or out of the PUC’s legal jurisdiction.
Barnes’ ruling would require Sunoco meet with the Lower Frankford Township supervisors and the Cumberland County commissioners within 30 days to schedule public awareness and education meetings.
Sunoco’s abrupt cancellation of a Lower Frankford Township meeting last year touched off some public sparring with the county commissioners over Sunoco’s apparent reluctance to conduct any meetings or training beyond what the county described as a “boiler-plate” response.
“It appears Judge Barnes has deliberately and forcefully laid out the case for greater transparency from Sunoco,” Cumberland County Commissioner Jim Hertzler said. “I think the judge’s preliminary decision sides with the position taken by the county.”
Under Barnes’ ruling, the pipeline operator would also be required to meet with county public safety officials within 30 days to discuss additional training or communication that the county may desire.
Sunoco will also have to submit to the PUC a written plan to improve certain deficiencies in its public awareness and emergency training programs within 90 days and will need to submit an audit of such programs within six months.
Baker’s complaint before the PUC centers on the Mariner East pipelines, which transport liquefied gas from hydrofracking sites in western Pennsylvania to the Marcus Hook processing facility in Philadelphia.
Sunoco’s right-of-way now houses three lines: Mariner East I, a line originally built in 1931 and recently repurposed for fracking liquids, as well as the newly built Mariner East II and IIx.
Baker’s home in Lower Frankford Township is within the 1,000-foot safety radius of the pipeline route, as are the homes of several of his friends and neighbors in the area just northwest of Carlisle. Many of them testified before Barnes in support of Baker’s case.
Baker’s main charge was that Sunoco had sent out safety information to his rural community only intermittently, and left residents, many of whom are physically disabled, with questions as to exactly how they should handle a pipeline leak or possible evacuation.
Barnes agreed, writing that Sunoco’s limited response to Baker as well as the county commissioners “shows a ‘one size fits all’ approach to public awareness rather than an enhanced public outreach program and perhaps a lack of proper record-keeping or internal controls designed to meet regulatory compliance within the company.”
Barnes’ opinion cites regulations from the state code and from the federal Pipeline and Hazardous Materials Safety Administration and industry standards from the American Petroleum Institute.
In addition, Baker had sought to require Sunoco to install some type of alarm or early-warning system to detect leaks via pressure drops, or simply by adding an odorant to chemicals traveling in the pipeline so that residents could smell a leak.
As Barnes reiterated in her ruling, there are no hard requirements in current regulations for such provisions, and she ruled in Sunoco’s favor on that matter.
But the PUC is moving through a rulemaking process for pipelines, including matters of public awareness, pressure testing and leak detection, in accordance with its authority to create necessary safety rules.
The PUC’s enforcement division has submitted comment to the rule-making case “requesting odorization or in the alternative enhance[d] leak detection to identify small leaks,” Barnes wrote.
Thus, Barnes said, Baker’s intent may come to fruition, regardless of his own case, via the PUC’s rule-making process, which is a more appropriate avenue.
“Even if there is not a consensus on every regulation, there is at least formalized due process before requirements of an odorant and/or alarm systems are placed upon the operator,” Barnes wrote of the future rule-making.
During the in-person hearing for Baker’s case in July, Barnes had pressed Sunoco consultant John Zurcher over the industry’s ability to self-determine what is and isn’t a reasonable safety precaution, after Zurcher had described leak-detection alarms as “feasible but just not practical.”
Baker’s other assertions in his filings were generally denied in Barnes’ ruling.
This included Baker’s charge that the European-made pipes used in part of the Mariner II and IIx projects, which had been imported by a company subject to steel-dumping penalties by the U.S. Department of Commerce, should be replaced.
“The commission has not authority to direct Sunoco to replace any foreign made steel pipes or fittings with American-made steel,” Barnes wrote.
The PUC’s rule-making case regarding pipeline construction and safety ended its comment period in September and is under review.
Sunoco’s comment on the case makes it clear that the industry does not believe the PUC has the legal authority to further put requirements on the pipeline, potentially setting up a legislative issue in Harrisburg.
The lack of certain provisions in Pennsylvania’s pipeline laws, relative to other utilities, “means the General Assembly did not intend to grant the PUC regulatory authority to dictate installation/construction techniques for pipeline facilities,” Sunoco wrote.
The Cumberland County commissioners, along with several municipal governments in the county, submitted comments to the PUC’s rule-making case encouraging stricter public outreach requirements.
Sunoco lobbied the PUC for the Mariner East builds to be considered public utilities in order to have eminent domain powers; now, Hertzler said, the company seems to not want the responsibility.
“They can’t have it both ways,” Hertzler said. “Now, as a public utility, they have a fundamental responsibility to the public.”