Sunoco Pipeline, L.P. v. PUC ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sunoco Pipeline, L.P., : CASES CONSOLIDATED
Petitioner :
:
v. : Nos. 1415-1419 C.D. 2021
: No. 1421 C.D. 2021
Public Utility Commission, : Argued: December 15, 2022
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION
BY SENIOR JUDGE LEAVITT FILED: May 5, 2023
Sunoco Pipeline, L.P. (Sunoco) petitions for this Court’s review of an
adjudication1 of the Pennsylvania Public Utility Commission (Commission) that
imposed a civil penalty in the amount of $2,000 for violations of the Pennsylvania
Public Utility Code2 and federal regulations applicable to gas pipelines.3 Sunoco
contends that the Commission erred and abused its discretion. First, the federal
regulations on pipeline construction were not an issue raised in any of the formal
complaints adjudicated by the Commission. Second, Sunoco cannot be sanctioned
or ordered to revise its public awareness program unless or until the Commission
promulgates a regulation that authorizes the ordered revisions. The Commission has
filed a motion to dismiss Sunoco’s appeal of its adjudication related to the
construction of Sunoco’s pipelines as moot because those pipelines are no longer
1
This matter comes before this Court on six separate petitions for review filed by Sunoco in
response to the Pennsylvania Public Utility Commission’s (Commission) opinion and order
entered at consolidated dockets Nos. C-2018-3006116, P-2018-3006117, C-2018-3003605, C-
2018-3005025, C-2018-3006898 and C-2018-3006900. By order of February 25, 2022, this Court
consolidated the cases for review.
2
66 Pa. C.S. §§101-3316.
3
The federal Pipeline and Hazardous Materials Safety Administration, or PHMSA, promulgated
pipeline safety regulations found in 49 C.F.R Parts 191-193, 195 and 199, which the Commission
adopted in Section 59.33(b) of its regulations, 52 Pa. Code §59.33(b).
transporting highly volatile liquids (HVLs). For the reasons to follow, we deny the
Commission’s motion to dismiss, and we reverse in part and affirm in part the
Commission’s remediation and civil penalty order to Sunoco.
Background
Since 2014, as authorized by its certificates of public convenience,
Sunoco has transported HVLs, including butane, ethane and propane or a
combination thereof, between Delmont, Westmoreland County, and Twin Oaks,
Delaware County. Sunoco’s Mariner East pipeline system consists of three
pipelines. The Mariner East 1 (ME1) is an 8-inch diameter pipeline built in the
1930s that has been repurposed to transport HVLs. The Mariner East 2 (ME2) is a
newly constructed 20-inch diameter pipeline that, at certain points, uses a 12-inch
“workaround pipeline” that was also built in the 1930s. The Mariner East 2X
(ME2X) is a new 16-inch diameter pipeline under construction. Administrative Law
Judge Initial Decision at 21-22, Findings of Fact (F.F.) Nos. 45-48.
Between July 2018 and January 2019, several formal complaints were
filed to challenge Sunoco’s Mariner East pipelines as unsafe and not providing a
reasonable utility service. The formal complaints were filed by Meghan Flynn,
Rosemary Fuller, Michael Walsh, Nancy Harkins, Gerald McMullen, Caroline
Hughes, and Melissa Haines (Flynn Complainants); the Andover Homeowners’
Association, Inc. (Andover); Melissa DiBernardino; Rebecca Britton; and Laura
Obenski (collectively, Complainants) and Aligned Intervenors.4 The formal
complaints sought to stop the operation of the ME1 and ME2 pipelines and
construction of the ME2X pipelines, including the workaround pipelines used for
4
The Aligned Intervenors include Downingtown Area School District, Rose Tree Media School
District, Twin Valley School District, East Goshen Township, West Whiteland Township,
Uwchlan Township, Middletown Township, Delaware County, West Chester Area School District,
Thornbury Township, Chester County, Edgmont Township, Clean Air Council, and Senator
Thomas Killion. Chester County and Clean Air Council have filed briefs in support of the
Commission.
2
HVLs. In the alternative, the complaints sought to have Sunoco ordered to take
certain measures to protect public safety, including an enhancement to its public
awareness program and integrity management plan.
More specifically, the Flynn complaint alleged that Sunoco’s ME1 and
workaround pipelines and valve stations have been unlawfully sited in densely
populated areas of Chester and Delaware Counties. A large HVL leak at any location
along the ME1 or a workaround pipeline creates the risk of “hundreds of fatalities.”
Flynn Second Amended Complaint ¶30; Reproduced Record at 152a (R.R. __). The
complaint also alleged that Sunoco failed to establish an adequate emergency
planning and public awareness program, as required by Section 1501 of the Public
Utility Code, 66 Pa. C.S. §1501; the Commission’s regulation at 52 Pa. Code §59.33;
and the federal regulation at 49 C.F.R. §195.440 (governing public awareness). The
complaint further alleged that Sunoco did not meet the federal minimum safety
standards in light of a 2017 leak in Morgantown, Pennsylvania, and a 2018 rupture
in Beaver County, Pennsylvania. Due to these safety problems, the complaint
requested the Commission to order an independent party to do a “remaining life
study” on Sunoco’s ME1 and workaround pipelines in Chester and Delaware
Counties. Flynn Second Amended Complaint at 36; R.R. 179a.
The DiBernardino complaint averred, inter alia, that Sunoco installed
its pipelines in unstable soil; with coating flaws; and too close to other HVL
pipelines, which was “too dangerous to be permitted.” DiBernardino Complaint
¶14; R.R. 264a. The complaint alleged that Sunoco violated federal safety
regulations by repurposing the pipelines built in the 1930s that “ha[ve] a long history
of leaks,” including a 2018 leak in Delaware County. DiBernardino Complaint ¶16;
R.R. 264a. The complaint questioned the integrity of the “1930s pipelines” and
requested the Commission to require Sunoco to establish “a credible and adequate
emergency/evacuation plan[.]” DiBernardino Complaint at 15; R.R. 270a. The
3
complaint challenged Sunoco’s existing public awareness program under 49 C.F.R.
§195.440 as inadequate because it did not explain how a gas leak would be detected
or be communicated to the public. Further, school districts and municipalities have
received “inadequate responses, or none at all” to their requests for information
needed for their emergency response planning. DiBernardino Complaint ¶23; R.R.
266a. The complaint requested the Commission to order Sunoco to suspend all
horizontal directional drillings for installation of the ME2 and ME2X pipelines until
“the risk to the public” is assessed and the “necessary geo-physical tests and
analyses” are performed. DiBernardino Complaint at 15; R.R. 270a.
The Britton complaint asserted that because Sunoco’s public awareness
program accounted only for those living within the 1000-foot impact radius, it was
insufficient. The Mariner East pipelines run through high consequence areas with
private dwellings, industrial buildings, and places of public assembly, in violation
of 49 C.F.R. §195.210(a). The complaint alleged that a valve station in Upper
Uwchlan Township presents an unreasonable risk to school students and staff across
the street. Britton Complaint ¶32; R.R. 370a-71a. The complaint asserted that
Sunoco’s public awareness program violated 49 C.F.R. §195.440 because it did not
provide sufficient information. Britton Complaint ¶¶11-14; R.R. 364a-65a. It also
raised concerns about the impact of Sunoco’s horizontal drilling upon public
drinking water. The Britton complaint requested the Commission to find that
Sunoco’s public awareness program, emergency alert system, and evacuation
procedures did not constitute safe and reasonable services, as required under 66 Pa.
C.S. §1501. Britton Complaint at 22-24; R.R. 376a-78a.
The Obenski complaint also alleged that Sunoco’s public awareness
program violated 49 C.F.R. §195.440 because it was not sufficiently informative on
leak detection and evacuation procedures. Obenski Complaint ¶1; R.R. 635a-37a.
School districts were unable to maintain “updated, actionable, and reliable
4
emergency preparedness plans” due to “lack of cooperation from Sunoco.” Obenski
Complaint ¶3; R.R. 638a. The complaint requested, inter alia, that the Commission
find that Sunoco’s public awareness program “has resulted in significant gaps in the
ability of” local government to “appropriately plan for the hazards introduced by the
Mariner East Project[.]” Obenski Complaint at 8-9; R.R. 640a-41a.
Finally, Andover’s complaint asserted that Sunoco’s public awareness
program violated 49 C.F.R. §195.440 because it had left the association’s members
“without either a credible notification system or emergency plan.” Andover
Complaint ¶98; R.R. 749a. This was unreasonable because the ME1 leaked three
times in 2016 and 2017, and the 12-inch workaround pipeline has leaked at least four
times in Chester and Delaware Counties since 1987. Andover Complaint ¶77; R.R.
745a. Andover asserted that Sunoco’s emergency evacuation plan, i.e., “immediate
on-foot self-evacuation in the correct upwind or uphill direction,” was not workable,
particularly for evacuations at night or during inclement weather. Andover
Complaint ¶93; R.R. 748a. Andover alleged that it had made numerous requests of
Sunoco “for a credible notification system and evacuation guidance” but received
neither. Andover Complaint ¶81; R.R. 746a. Andover requested the Commission
to order Mariner East operations limited or stopped until Sunoco provides a
“comprehensive risk assessment and credible notification and evacuation plan.”
Andover Complaint at 23; R.R. 751a.
The complaints were assigned to an Administrative Law Judge (ALJ)
for disposition. By order of June 6, 2019, the ALJ consolidated the proceedings on
the formal complaints. The ALJ’s order identified “six central issues” that follow:
(1) the safety and integrity of ME1, ME2, ME2X, and the 12-
inch pipeline;
(2) the safety of the location of the pipelines and related
equipment (i.e. valve stations);
(3) the adequacy of Sunoco, L.P.’s public awareness program;
5
(4) the adequacy of Sunoco, L.P.’s emergency response
procedures and training;
(5) Sunoco, L.P.’s integrity management protocols; and
(6) the safety of the construction of ME2 and ME2X.
ALJ Order, 6/6/2019, at 4; R.R. 845a.
The ALJ conducted in-person hearings in 2019, at which members of
the public appeared. Sunoco, Complainants and Aligned Intervenors all filed written
direct and rebuttal testimony between January and August of 2020. The ALJ then
conducted evidentiary hearings from September 29, 2020, to October 9, 2020, and
on October 13-14, 2020. All parties filed post-hearing briefs.
On April 12, 2021, the ALJ issued an Initial Decision denying
Complainants’ request that Sunoco cease construction and operation of the Mariner
East pipelines. The ALJ reasoned that the Commission lacked jurisdiction over
pipeline siting; regardless, the location of the Mariner East pipelines and the valve
stations complied with both state and federal law. The ALJ also concluded that
Complainants and Aligned Intervenors failed to prove that Sunoco violated the
integrity management5 provision in 49 C.F.R. §195.452 or the cathodic protection
provision in 49 C.F.R. §195.571. The ALJ found that Sunoco followed its integrity
management plan, which treats all segments of the Mariner East pipelines in Chester
and Delaware Counties as if they are located in a high consequence area. ALJ Initial
Decision at 115. Because the integrity management program requires on-going
testing, maintenance, and repair of the pipelines to keep them in compliance with
regulatory requirements, the ALJ denied Complainants’ request that Sunoco hire an
5
“Integrity management” refers to a process in which pipeline operators “devote additional
resources to preventing and mitigating hazards to pipeline safety within [high consequence areas].”
Commission Adjudication at 24 n.8. As the Commission explained, the federal pipeline safety
regulations use the concept of “high consequence areas,” or HCA, to “identify specific locales and
areas where a failure could have the most significant adverse consequences.” Id. The federal
regulations require “the use of an in-line inspection device or comparable technology to ensure
hazardous liquid pipeline integrity within HCAs.” Id.6
independent party to conduct a “remaining life study” on the ME1 and the
workaround pipelines. Id. at 112.
The ALJ determined, however, that Sunoco had violated Section 1501
of the Public Utility Code, 66 Pa. C.S. §1501, in two ways. First, the ME1 and the
workaround pipelines did not satisfy the depth of cover and spacing regulations set
forth in 49 C.F.R. §§195.210(b), 195.248, and 195.250. Second, Sunoco’s public
awareness program did not satisfy the requirements of 49 C.F.R. §195.440.
Depth of Cover and Distance of Pipelines
With respect to the violation of 49 C.F.R. §§195.210(b), 195.248, and
195.250, the ALJ relied on the presentation of complainant Gerald McMullen that
the ME1 is located within 50 feet of several homes, including his, as well as the
Chester County Library. He testified that the ME1 is “shallow,” as are the “new
pipelines that are proposed to go in.” Notes of Testimony (N.T.), 10/23/2019, at
979; R.R. 929a. McMullen presented a photograph of an 8-inch ME1 pipeline and
another pipeline that were exposed in a dry creek bed near Whiteland West
Apartments. R.R. 950a. Another one of McMullen’s photographs showed that an
underground pipeline transected a ball field. R.R. 952a.
As to the distance between the pipelines, McMullen presented an
exhibit he created indicating “the distances between the two existing pipelines and
the two proposed pipelines” between his home and the Chester County Library. N.T.
951; R.R. 901a. The exhibit showed the ME1 and the 12-inch workaround pipelines
placed 25 feet apart, and the ME1, ME2X, ME2, and the workaround pipelines
placed 8 to 9 feet apart from each other. Id.; see also R.R. 946a. McMullen also
presented a photograph taken from his property showing Sunoco pipeline markers.
He testified, in relevant part:
Following the markers straight down, that is [ME]1. The
markers to the right of that are the potential path of [ME]2X.
7
Right on the other side of that wooden fence is [ME]2, and
closest to the library is the 12-inch workaround line.
N.T. 952; R.R. 902a. McMullen expressed concern that “there are four pipes in such
a small space” because, should there be a leak or an accident, he and other residents
would have difficulty in following Sunoco’s recommendation to evacuate from the
scene, “upwind, uphill,” on foot. N.T. 951-52; R.R. 901a-02a. In addition,
McMullen presented photographs of a parking lot in Exton, Chester County,
showing markers on the ground for two pipelines buried underneath, one of them
being ME1, but he did not specify the distance between the two pipelines. R.R.
951a.
Based on McMullen’s testimony about the shallow pipes and
photographs, the ALJ found that the ME1 pipeline is not always covered with 48
inches of ground cover when located within 50 feet of dwellings, as required under
49 C.F.R. §195.210(b).6 ALJ Initial Decision at 93. Nevertheless, the ALJ
acknowledged that neither complainants nor Sunoco “offered any measurements
regarding depth of cover of a pipe within 50 feet of the library and Mr. McMullen’s
house.” Id. The ALJ explained, however, that her finding was consistent with the
Pennsylvania Department of Environmental Protection’s September 11, 2019, order,
6
It states:
(b) No pipeline may be located within 50 feet (15 meters) of any private dwelling,
or any industrial building or place of public assembly in which persons work,
congregate, or assemble, unless it is provided with at least 12 inches (305
millimeters) of cover in addition to that prescribed in §195.248.
49 C.F.R. §195.210(b). Section 195.248(a) provides:
(a) Unless specifically exempted in this subpart, all pipe must be buried so that it is
below the level of cultivation. Except as provided in paragraph (b) of this section,
the pipe must be installed so that the cover between the top of the pipe and the
ground level, road bed, river bottom, or underwater natural bottom (as determined
by recognized and generally accepted practices), as applicable, complies with the
following table [requiring a maximum of 36 inches of coverage in industrial,
commercial, and residential areas].
49 C.F.R. §195.248(a).
8
which directed Sunoco to cover exposed pipelines at 43 locations across the state,
one of which involved the transport of HVLs. Id. at 97.
The ALJ found that Sunoco violated 49 C.F.R. §195.250, which
requires a 12-inch separation between pipelines transporting HVLs and underground
structures.7 Despite McMullen’s testimony and his diagram showing that the ME1,
ME2X, ME2, and the workaround pipelines are about 8 to 9 feet apart from each
other, the ALJ found that the pipelines under the parking lot and between
McMullen’s home and the Chester County Library were placed approximately 8
inches apart.
In making these findings, the ALJ observed that Matt Gordon, senior
director of Sunoco operations in Chester and Delaware Counties, did not refute
McMullen’s testimony. With regard to McMullen’s photographs of exposed
pipelines in the streambed next to Whiteland West Apartments, Gordon testified that
those pipelines had been abandoned and were no longer in use. He could not recall
the distance between those two exposed pipelines. Gordon testified there is 48
inches of cover over ME2, but he did not speak to the depth of cover over ME1 or
the 12-inch workaround pipeline near McMullen’s home, which McMullen
described as “shallow.” ALJ Initial Decision at 93. The ALJ took judicial notice of
Gordon’s testimony in a prior proceeding, Dinniman v. Sunoco Pipeline, L.P., P-
2018-3001453 and C-2018-3001451 (Dinniman Proceeding),8 that “10 feet
7
Section 195.250 provides:
Any pipe installed underground must have at least 12 inches (305 millimeters) of
clearance between the outside of the pipe and the extremity of any other
underground structure, except that for drainage tile the minimum clearance may be
less than 12 inches (305 millimeters) but not less than 2 inches (51 millimeters).
However, where 12 inches (305 millimeters) of clearance is impracticable, the
clearance may be reduced if adequate provisions are made for corrosion control.
49 C.F.R. §195.250.
8
In that case, state senator Andrew E. Dinniman filed a formal complaint with the Commission
seeking to enjoin Sunoco’s operation of ME1 and the construction of ME2 and ME2X in West
9
separation was a standard distance buffer between the ME1 and ME2 and ME2X
pipelines.” ALJ Initial Decision at 94.
The ALJ concluded that Sunoco did not refute Complainants’ evidence
that the ME1 was not buried at the correct depth and was too close to the other pipes.
Public Awareness Program
With regard to Sunoco’s public awareness program, the ALJ made
numerous and detailed findings. Beginning in 2014, Sunoco has done public
awareness mailings for the Mariner East pipelines: one to the affected public; one
to excavators and public officials; and one to emergency responders. The public
pamphlet and emergency responder pamphlet state that natural gas liquids (NGLs)
are
flammable and can ignite when [they] come[] into contact with
an ignition source. Exposure can cause moderate irritation
including headaches and dizziness. NGL may contain hydrogen
sulfide H2S.
ALJ Initial Decision at 134 (citing Sunoco Exhibits GG-1 and GG-2). However, the
pamphlets do not mention “death, burns, serious injuries, frostbite or asphyxiation”
as possible consequences of a pipeline rupture or ignition. ALJ Initial Decision at
49, F.F. No. 244. In the event of a leak, the pamphlets advise one to leave the area
on foot to a safe distance; warn others; turn off electrical equipment; and call 911.
Each individual must determine a “safe distance” on a case-by-case basis. Id. at 51,
F.F. No. 261. The pamphlets do not address the evacuation of individuals with
physical or mental limitations.
Whiteland Township that had allegedly caused sinkholes. The Commission affirmed the ALJ’s
emergency interim order directing Sunoco to cease construction of ME2 and ME2X. This Court
reversed the Commission’s adjudication in Sunoco Pipeline L.P. v. Dinniman, 217 A.3d 1283 (Pa.
Cmwlth. 2019), and remanded the matter to the Commission with instructions to dissolve the
interim emergency injunction and dismiss Dinniman’s complaint for lack of standing.
10
Since 2014, Sunoco has developed and maintained websites with
information about the Mariner East pipelines, including one dedicated specifically
to pipeline safety. ALJ Initial Decision at 53, F.F. No. 270. Sunoco has also
disseminated public awareness and safety information about the Mariner East
pipelines through social media. Id., F.F. No. 271. Since 2016, Sunoco has used
billboards, radio advertising, and television advertising to provide information about
the Mariner East pipelines. Id., F.F. No. 272. Sunoco has held open houses in
Chester and Delaware Counties to provide information about the construction of the
Mariner East pipelines. Sunoco has engaged a consultant that specializes in
community planning and emergency preparedness, and Sunoco has met with school
districts in Delaware and Chester Counties. Id., F.F. No. 276.
In 2019, Sunoco’s public awareness program was audited as part of the
Public Awareness Program Effectiveness Research Survey (“PAPERS”), a program
developed by the American Petroleum Institute (API). ALJ Initial Decision at 54,
F.F. No. 277. The audit concluded that Sunoco’s public awareness program “was
effective in achieving program objectives and was comparable to the other pipeline
operators’ programs.” Id., F.F. No. 278.
Additionally, Sunoco meets with emergency responders in Delaware
and Chester Counties every other month to provide training, tours, and exercises.
ALJ Initial Decision at 59-63, F.F. Nos. 314-45. Gregory Noll, Sunoco’s expert
witness in emergency planning and emergency response training, conducted Mariner
Emergency Responder Outreach (MERO) trainings in Delaware and Chester
Counties in 2017 and 2020. Sunoco participates in annual Coordinated Response
Exercises (CoRE) for emergency responders in Delaware and Chester Counties.
Sunoco participates in bi-weekly meetings with townships across Delaware and
Chester Counties and monthly meetings with Chester County Association of
Township Officials to provide project updates. The ALJ found that the level of
11
training and funding for equipment provided by Sunoco in Delaware and Chester
Counties exceeds that of any other NGL pipeline operator in these counties. ALJ
Initial Decision at 59, F.F. No. 320.
Sunoco’s MERO training provides that the decision to evacuate or
shelter in place should be made by the emergency responder on a case-by-case basis.
Delaware County has adopted an emergency response plan that includes factors to
be considered in making that decision. Id. at 55, F.F. No. 290. Accordingly, Sunoco
does not provide notice of a pipeline release directly to schools and municipalities.
The ALJ found that Sunoco must directly notify schools and
municipalities in the event of a rupture or release because they are also “first
responders.” Id. at 57, F.F. Nos. 302-03. Municipalities and school districts are
required to create their emergency response plans under the Emergency
Management Services Code, 35 Pa. C.S. §§7101-79A33, and they need information
from Sunoco to develop their plans. ALJ Initial Decision at 60, F.F. No. 323. The
information Sunoco has provided to municipalities and school districts in Delaware
and Chester Counties includes:
(i) the location of the pipelines; (ii) the location of the valve
stations; (iii) proximity to schools; (iv) the products in pipelines
and their physical properties; (v) the hazards of those products;
(vi) a rule of thumb for a safe distance in the event of a significant
release; (vii) the direction of flow of product in the pipelines;
(viii) that in the event of a catastrophic release the product
between the corresponding valve sites will be released; (ix)
plume modeling; (x) [Sunoco’s] integrity management, security
and PHMSA compliance programs; and (xi) [Sunoco’s] remote
monitoring center for leak detection.
ALJ Initial Decision at 60, F.F. No. 324 (quotations omitted).
In sum, the ALJ found that Sunoco’s public awareness program
satisfied “many requirements” of the federal pipeline safety regulations, including
the use of a one-call notification system, identification of a pipeline release, steps to
12
take in the event of a release, procedures to report a release, and limitations on cell
phone use during a release. ALJ Initial Decision at 54, F.F. No. 281. Accordingly,
the ALJ denied Complainants’ requests for mass warning systems, addition of
odorants to the NGLs in the pipelines, and notice of evacuation procedures, as well
as their requests to have Sunoco revise its public mailers to address “what a safe
distance is before using a cellular phone, wind direction and other means of
transporting persons other than walking away and upwind from a release.” ALJ
Initial Decision at 140, 161, 167-69. The ALJ concluded that these requests should
be addressed in the Commission’s on-going rulemaking proceeding that was
considering amendments to the public awareness regulations.
On the other hand, the ALJ found inadequacies in Sunoco’s public
awareness program. William H. Turner, Deputy Director for Chester County’s
Department of Emergency Services, testified that Sunoco’s CoRE meetings and
MERO trainings were insufficient for planning purposes. Turner testified that trying
to get information from Sunoco for the County’s emergency response plan was like
hitting a “brick wall.” ALJ Initial Decision at 147. Should a leak occur in the
pipeline valve located near the Downingtown Area School District, Turner estimated
that it would take 10 minutes for the pipeline operator to arrive on the scene with a
gas meter. Turner believed that Sunoco should enhance its public outreach and
education programs by providing municipalities and school districts information
needed to develop their emergency response plans. Id. at 148-49.
In these findings, the ALJ credited the testimony of Timothy Hubbard,
the fire marshal and emergency management officer in Charlestown Township,
Chester County. Hubbard explained it was difficult to have “consistent contact”
with Sunoco on information such as “what product is flowing at any given time,
when it’s flowing, when products are changing and the nature of the products.” ALJ
Initial Decision at 148. Hubbard testified there was a lack of “real, true and credible
13
assistance” from Sunoco, such as “expert advice from the perspective of a pipeline
operator or resources in the event that an emergency were to occur.” Id. Hubbard
does not know, for example, how much product would be released in a leak before
the shut-off valves can be activated.
The ALJ found emergency planning agencies, first responders,
residents, school districts, and municipalities were “confused and concerned” about
how to protect their communities in the event of a gas leak. ALJ Initial Decision at
149. School officials did not know whether cellphones can be safely used in an
evacuation that could involve thousands of children. Witnesses from multiple school
districts expressed confusion over the first steps to take in a pipeline emergency.
West Chester and Twin Valley School Districts planned to have students shelter in
place until receiving further notice, but this contravened Sunoco’s recommendation
to evacuate from the scene of a pipeline emergency, on foot, immediately. Hubbard,
who also serves as the chief security officer of the Downingtown Area School
District, questioned Sunoco’s recommendation to evacuate on foot and upwind. The
Downingtown Area School District has a student population that ranges in age from
kindergarten through twelfth grade, and it includes special needs children. Deciding
wind direction is a “hit-or-miss” situation, particularly since winds fluctuate. Id. at
154. If a leak occurred near the playground, it could asphyxiate children. Should a
car drive through a leak, it could ignite an explosion. Emile Lonardi, the
superintendent of Downingtown Area School District testified that she “has been
given conflicting information” and did not have a “credible or practical or realistic
plan in place to keep the students safe in the event of leak” from the Mariner East
pipelines. Id. at 153.
The ALJ found a “need for emergency response measures by [Sunoco]
that will maximize the timeliness and effectiveness of the school districts’ response
at each of their facilities.” ALJ Initial Decision at 156. The ALJ found Sunoco’s
14
existing CoRE exercises and MERO training on accidents to be inadequate.
Accordingly, the ALJ concluded Sunoco’s failure to engage with the local
emergency personnel upon their request constituted “unreasonable service,” in
violation of 66 Pa. C.S. §1501 and 52 Pa. Code §59.33. ALJ Initial Decision at 151.
Sunoco’s failure to provide sufficient guidance to schools located within a few
hundred feet of the Mariner East pipelines specifically violated 49 C.F.R.
§195.440(d)(4), which requires Sunoco to reach out to “appropriate government
organizations” with “steps that should be taken” in the event of an emergency. ALJ
Initial Decision at 151. The ALJ was persuaded that school districts should receive
the same information provided to emergency responders in light of their
responsibility to plan for emergencies.
The ALJ also found deficiencies in Sunoco’s required communication
with the public. The federal regulation at 49 C.F.R. §195.440(a) requires that a
pipeline operator develop and implement a written continuing public education
program that follows the guidance provided by API Recommended Practice (RP)
1162. In turn, Section 4.2 of API RP 1162 provides that “operators should provide
a very broad overview of potential hazards, their potential consequences and the
measures undertaken by the operator to prevent or mitigate the risks from the
pipelines.” R.R 1146a (emphasis added).9
9
API RECOMMENDED PRACTICE 1162 (First Edition, December 2003), Public Awareness
Programs for Pipeline Operators, at 19. Section 4.2 of API RP 1162 states:
Hazard Awareness and Prevention Measures
Operators should provide a very broad overview of potential hazards, their potential
consequences and the measures undertaken by the operator to prevent or mitigate
the risks from pipelines (including, at the operator’s discretion, an overview of the
industry’s safety record). Additionally, operators should provide an overview of
their preventative measures to help assure safety and prevent incidents. The scope
of the hazard awareness and prevention message should be more detailed for the
emergency responder audience than for other audiences, and should include how to
obtain more specific information upon request from the operator.
R.R. 1146a.
15
Based on these findings of fact and conclusions of law, the ALJ
recommended the imposition of a civil penalty of $2,000 on Sunoco for “having
violated regulations: 49 C.F.R. §195.440; 49 C.F.R. §195.210; [49 C.F.R.
§]195.248; 66 Pa. C.S. §3301(c); 49 U.S.C.A. §60118(a); 52 Pa. Code §69.1201; 66
Pa. C.S. §1501 and 52 Pa. Code §59.33.” ALJ Initial Decision at 197; Conclusion
of Law No. 71. Of the $2,000 civil penalty, $1,000 was imposed for Sunoco’s
“unreasonable service [] to not oblige [the school districts and municipalities’]
request” for “more information and emergency responder training.” ALJ Initial
Decision at 140. The remaining $1,000 penalty, accordingly, was for the violation
of the pipeline depth of cover and distancing regulations. The ALJ also
recommended injunctive-type relief to address these violations.
Commission Adjudication
Sunoco filed exceptions to the ALJ’s Initial Decision. It challenged the
ALJ’s determination that it had violated the pipeline depth of cover and distance
regulations in 49 C.F.R. §§195.210(b), 195.248, and 195.250, which were not an
issue in the proceeding. In addition to violating Sunoco’s right to due process, the
ALJ misinterpreted the cited federal regulations, which did not apply to the ME1
and the workaround pipelines, and made findings of fact unsupported by substantial
evidence. Sunoco objected to the ALJ’s order to revise its public awareness program
because it imposed a burden not required under Pennsylvania or federal law or
imposed on any other pipeline operator.
By adjudication of November 18, 2021, the Commission denied
Sunoco’s exceptions. The Commission adopted the ALJ’s proposed findings of fact,
conclusions of law and recommended order as its own. The Commission imposed a
civil penalty in the total amount of $2,000.
With regard to Sunoco’s public awareness program, the Commission
also ordered remediation measures. They included the following:
16
18. That Sunoco Pipeline, L.P. is directed to contact Chester
County Commissioners, Delaware County Commissioners, and
all municipalities’ supervisors therein within thirty (30) days of
the date of Final entry of this Opinion and Order in this
consolidated proceeding to arrange for meeting(s) (either
remotely or in-person or a combination thereof as mutually
agreeable) to:
a) establish emergency contact list information for
the operator’s controller and county liaison(s);
b) disclose to Middletown Township, Delaware
County, and Chester County any damage or
potential damage to their respective facilities or
properties resulting from the operation of the
pipelines;
c) assist with the establishment of emergency plans
for first responders in the event of a leak, release,
explosion, or other failure of the pipeline system
and the communication of all information required
under state and federal law to enable Middletown,
Delaware County, and Chester County to prepare
such emergency plans;
d) inform and educate Middletown and Delaware
County officials and staff on proper and effective
disaster prevention and disaster response, including
participation in “tabletop” activities and/or “boots
on ground” exercises as referenced by Sunoco in its
letter dated August 13, 2020 and admitted as exhibit
SUNOCO-50 and as requested by Complainants
and their aligned Intervenors;
e) develop standard notification templates for public
warning systems to be used during a pipeline
emergency and develop emergency classification
levels (i.e., a small leak release versus a rupture
event) which are specifically designed to make the
public aware of the situation;
f) provide detailed information regarding its
infrastructure;
17
g) assist in the development of an evacuation plan
for use by municipalities with concept of how
evacuation would occur;
h) create a public outreach and public education
program;
i) introduce to the operator’s designated County
liaison(s) a tour of the area surrounding the pipeline
facilities such that the liaison(s) may be made aware
of the geology, terrain and location of schools,
libraries, retirement and apartment housing as well
as train tracks, roadways, recreational parks,
housing developments such that the liaison may
provide local emergency planning assistance to
local emergency management partners that could
consist of dedicated employee(s) and or funding to
support additional employees;
j) notify not only the County but all municipalities
in Delaware or Chester County of anticipated,
scheduled or commenced work done in those
counties;
k) notify County officials, in advance, of any
pipeline activity, such as simulations, testing,
routine maintenance, repairs, etc.;
l) subject to a nondisclosure agreement, share with
Chester County’s Department of Emergency
Services maps of all transmission lines listing
material moved, pipeline diameter, mainline valve
locations and maximum operating pressures
(MOP), and maximum allowable operating pressure
(MAOP) and information about the location of any
anomalies that merit pressure reduction in the
pipeline and the presence of “immediate,” “60-day”
or “180-day” repair conditions for liquid pipelines
or “immediate” or “one- year” repair conditions for
gas pipelines; and
m) establish times and dates for follow-up meetings
and periodic meeting schedules as mutually
agreeable between municipalities, counties and
Sunoco Pipeline, L.P.
18
Commission Adjudication at 113-15.
As to depth of cover over, and distance between, Sunoco’s pipelines,
the Commission ordered remediation measures that follow:
24. That Sunoco Pipeline, L.P. is directed to conduct a depth of
cover and distance between other underground
pipelines/structures survey regarding Mariner East 1 and the 12-
inch workaround pipelines as long as they are purposed for
carrying highly volatile liquids a/k/a natural gas liquids.
25. That Sunoco Pipeline, L.P. is directed to bury its Mariner
East 1 and 12-inch pipelines as long as these pipelines are
transporting Highly Volatile Liquids such that they are at least
twelve inches apart from other underground pipes or structures
unless the operator can show it is providing adequate corrosion
control in these areas where the pipes are less than twelve inches
apart.
26. That within one hundred twenty (120) days of the date of
Final entry of this Opinion and Order, Sunoco Pipeline, L.P. shall
file a report with the Commission certifying whether Mariner
East 1 and the 12-inch workaround pipelines that are transporting
highly volatile liquids within Chester and Delaware Counties are
buried so that they are below the level of cultivation and so the
cover between top of pipe and ground level, road bed, river
bottom or underwater natural bottom is in compliance with
minimum regulatory requirements and the distance between
pipeline exteriors and the exteriors of other underground
pipelines/utility structures are at least twelve inches apart unless
adequate corrosive control action can be shown, and that a copy
of the report be served upon the Commission’s Bureau of
Technical Utility Services and the Bureau of Investigation and
Enforcement.
27. That the report as described in Ordering Paragraph No. 26
shall contain a corrective action plan regarding any areas of
operating pipelines (including Mariner East 1, 8-inch pipeline,
and the 12-inch workaround pipelines) carrying highly volatile
liquids in Delaware and Chester Counties in need of remediation
where there is lack of required cover and/or proper distance
between other structures/pipelines in order to bring these
pipelines up to federal minimum codified requirements.
19
28. That the report as described in Ordering Paragraph No. 26
shall be filed annually for a period of three (3) years.
Commission Adjudication at 116-17.
Sunoco appealed to this Court. On November 18, 2022, the
Commission filed a motion to dismiss Sunoco’s petition for review, in part, on
grounds of mootness.
Appeal
On appeal,10 Sunoco raises two issues for our review. First, Sunoco
argues that the Commission erred in holding that it violated the federal regulations
on depth of cover and distance between pipelines. This issue was not raised in any
of the formal complaints and, thus, Sunoco was deprived of notice and an
opportunity to be heard. Alternatively, Sunoco argues that the Commission
misconstrued and misapplied the federal regulations because they govern the
construction of new pipelines built after 1981, when the federal regulations on depth
of cover and pipeline distance were promulgated. The ME1 and the workaround
pipelines are exempt because they were constructed in the 1930s. Further, other
federal regulations govern the operation and maintenance of existing gas pipelines.
In any case, the ALJ’s findings of fact on depth of cover and spacing of the ME1
and the workaround pipelines are not supported by substantial evidence. Second,
10
On a petition to review an adjudication of the Commission, our standard of review is limited to
determining whether substantial evidence supports the necessary findings of fact, whether the
Commission erred as a matter of law, and whether constitutional rights were violated. Retail
Energy Supply Association v. Pennsylvania Public Utility Commission, 185 A.3d 1206, 1220 (Pa.
Cmwlth. 2018) (quotations omitted). We defer to the Commission’s interpretation of the Public
Utility Code and its own regulations unless the Commission’s interpretations are clearly erroneous.
Id. (quotations omitted). We may not substitute our judgment for that of the Commission “when
substantial evidence supports the [Commission’s] decision on a matter within the [C]ommission’s
expertise.” Id. (quotations omitted). “Judicial deference is even more necessary when the statutory
scheme is technically complex.” Id. (quotations omitted). On issues of law, “our standard of
review is de novo and our scope of review is plenary.” Id.20
Sunoco argues that the Commission erred and abused its discretion in ordering
Sunoco to revise its public awareness program in ways not required by existing state
and federal regulations. Effectively, the Commission’s order to Sunoco constitutes
the promulgation of a regulation that cannot be done in the course of an adjudication
but only in a rule-making proceeding.
In its motion to dismiss, the Commission argues that Sunoco’s appeal
of its adjudication with respect to the depth of cover and distance of the ME1 and
12-inch workaround pipelines is moot because those pipelines are no longer
transporting HVLs. On the merits, the Commission argues that it acted within its
authority under the Public Utility Code and the applicable regulations to ensure that
Sunoco provided adequate, safe, and reasonable service. Further, it argues that the
Commission’s interpretation of the Public Utility Code and applicable regulations,
including the federal regulations, is entitled to deference.11
Mootness
We begin with the Commission’s motion to dismiss Sunoco’s appeal
for mootness. The Commission asserts that Sunoco’s appeal on the Commission’s
adjudication regarding “depth of cover and pipeline distance applied directly and
exclusively to Sunoco’s [ME1] and 12-inch workaround pipelines as long as these
11
The Commission regulations at 52 Pa. Code §59.33, promulgated pursuant to 66 Pa. C.S. §1501,
require that hazardous liquid utilities shall have minimum safety standards consistent with the
pipeline safety laws at 49 U.S.C. §§60101-60503 and the regulations at 49 C.F.R. Parts §§191-
193, 195, and 199. The Commission regulations adopt federal safety standards for hazardous
liquid facilities. These standards include what materials must be used for new hazardous liquid
pipelines, and how those pipelines should be constructed, as well as corrosion control, maintenance
and testing of existing hazardous liquid pipelines. The standards also address emergency
preparedness and public awareness plans.
21
pipelines are transporting [HVLs]” is now moot. Commission Motion, ¶5 (emphasis
in original). The ME1 and the 12-inch workaround pipelines are no longer
transporting HVLs. Sunoco responds that because the adjudication ordered a civil
penalty for violating the depth of cover and distance regulations, its appeal cannot
be moot. If Sunoco succeeds in its appeal, it can recover its payment. Further, an
adjudicated violation will be used to establish a penalty in a future enforcement
action against Sunoco, should one occur. See 52 Pa. Code §69.1201(c)(6) (providing
that frequent, recurrent violations by a public utility may result in a higher penalty).
Generally, a case will be dismissed as moot if there exists no actual case
or controversy. Fraternal Order of Police v. City of Philadelphia, 789 A.2d 858(Pa. Cmwlth. 2002). The existence of a case or controversy requires
(1) a legal controversy that is real and not hypothetical, (2) a legal
controversy that affects an individual in a concrete manner so as
to provide the factual predicate for a reasoned adjudication, and
(3) a legal controversy with sufficiently adverse parties so as to
sharpen the issues for judicial resolution.
Mistich v. Pennsylvania Board of Probation and Parole, 863 A.2d 116, 119 (Pa.
Cmwlth. 1994) (quoting Dow Chemical Company v. United States Environmental
Protection Agency, 605 F.2d 673, 678 (3rd Cir.1979)). A controversy must continue
through all stages of judicial proceedings, trial and appellate, and the parties must
continue to have a “personal stake in the outcome” of the lawsuit. Mistich, 863 A.2d
at 119 (quoting Lewis v. Continental Bank Corporation, 494 U.S. 472, 477–78
(1990)).
An exception to mootness will be found where (1) the conduct
complained of is capable of repetition yet likely to evade judicial review; (2) the case
involves issues of great public importance; or (3) one party will suffer a detriment
in the absence of a court determination. Horsehead Resource Development
Company, Inc. v. Department of Environmental Protection, 780 A.2d 856, 858 (Pa.
22
Cmwlth. 2001). It is within the court’s discretion to decide “substantial questions,
otherwise moot, which are capable of repetition unless settled.” Colonial Gardens
Nursing Homes, Inc. v. Bachman, 373 A.2d 748, 750 (Pa. 1977).
Sunoco’s decision to discontinue using the ME1 and the 12-inch
workaround pipelines for HVLs does not moot its challenge to the adjudicated
violation of the depth of cover and distance regulations because Sunoco has paid a
$1,000 civil penalty for that violation and would like it refunded. Additionally,
nothing in the Commission’s order prevents Sunoco from resuming the
transportation of HVLs in the ME1 and the 12-inch workaround pipelines at some
point in the future.
Accordingly, we deny the Commission’s motion. We turn, then, to the
merits of Sunoco’s issues on appeal.
Depth of Cover and Distance Pipeline Regulation
Sunoco argues that it was denied due process because the pipeline depth
of cover and distance regulations found in 49 C.F.R. §§195.210, 195.248 or 195.250
were not cited in any of the formal complaints. The Flynn complaint originally cited
the federal depth of cover regulation, but not the distance regulation. However, the
Flynn Complainants withdrew that complaint and did not include that issue in their
amended complaint. None of the other formal complaints cited these federal
regulations, and none of the Complainants or Aligned Intervenors raised these
federal regulations in their post-hearing briefs. Sunoco argues that the ALJ erred in
raising, sua sponte, the depth of cover and distance regulations for the first time in
her Initial Decision.
The Commission responds that the Flynn complaint alleged a violation
of 66 Pa. C.S. §1501, and the pipeline safety regulation at 52 Pa. Code §59.33. This
put Sunoco on notice that compliance with all state and federal pipeline safety
regulations would be at issue, even without a specific citation to 49 C.F.R.
23
§§195.210, 195.248 or 195.250. Further, the ALJ’s pre-hearing order stated that one
of the issues to be addressed was “the safety and integrity of ME1, ME2, ME2X,
and the 12-inch pipelines” and “the safety of the locations of the pipelines[.]”
Commission Brief at 53 (quoting R.R. 844a-46a).
It is beyond peradventure that an administrative hearing is limited to
the legal questions raised by the parties. The hearing tribunal may not, sua sponte,
augment the subject matter of a proceeding. As this Court has recently explained:
Sua sponte consideration of an issue deprives counsel of the
opportunity to brief and argue the issues and the court of the
benefit of counsel’s advocacy. Moreover, raising issues sua
sponte after the record is closed and without notice to the parties
constitutes a due process violation.
Orange Stones Company v. Borough of Hamburg Zoning Hearing Board, 991 A.2d
996, 999 (Pa. Cmwlth. 2010) (quotations omitted).
On due process, this Court has directed that a utility must be “afforded
a reasonable opportunity to know the nature of its opponents’ contentions so that it
can prepare a suitably responsive answer.” Duquesne Light Company v.
Pennsylvania Public Utility Commission, 507 A.2d 433, 437 (Pa. Cmwlth. 1986).
See also Commonwealth v. Public Utility Commission, 331 A.2d 598, 600 (Pa.
Cmwlth. 1975) (“anyone involved in a proceeding” is entitled to “notice of specific
charges or complaints”). In Duquesne Light Company, the Commission ordered an
electric utility to refund customers the cost of replacement service required by the
utility’s shutdown of a nuclear plant. The utility challenged the Commission’s order
on grounds that it did not receive adequate notice that the reasonableness of its
actions immediately preceding the shutdown order was a matter in issue. This Court
agreed, holding that the Commission violated due process by deciding an issue for
which the utility did not receive notice.
24
In Pocono Water Company v. Pennsylvania Public Utility Commission,
630 A.2d 971 (Pa. Cmwlth. 1993), a formal complaint alleged inadequate service
from a water utility. Sua sponte, the ALJ imposed a penalty upon the water company
because it had not complied with a prior order of the Commission to build storage
tanks. In its appeal, the utility asserted a violation of due process because there was
no notice that a prior order was at issue. Reversing the Commission’s order, this
Court explained as follows:
Due process in matters before the Commission requires that a
party be afforded reasonable notice of the nature of the
allegations against it so that the party can prepare a suitable
defense. Duquesne Light Co. v. Pennsylvania Public Utility
Commission, 507 A.2d 433. Although the Commission may take
notice of results it reached in other cases, the record must reflect
that the parties had notice that the Commission would consider
such evidence. City of Erie v. Pennsylvania Public Utility
Commission, [] 398 A.2d 1084 ([Pa. Cmwlth.] 1979). This Court
has held that the Commission violated due process rights when it
assessed liability by determining an issue which the utility had
not been afforded a reasonable opportunity to address at an
evidentiary hearing.
Pocono Water Company, 630 A.2d at 973.
Here, the depth of cover regulation was expressly withdrawn from the
Flynn complaint, and the pipeline separation issue was never raised. Rather, the
formal complaints raised general safety concerns about the Mariner East pipeline
system. Ironically, the ALJ did not make a specific finding that the system was
unsafe. More to the point, a general allegation about “safety” did not put Sunoco on
notice that it should prepare to defend the spacing and depth of its pipelines, which
are very specific in their terms.12 Further, Complainants and their Aligned
12
By contrast, the formal complaints put Sunoco on notice that it should prepare to defend its
public awareness program. See Flynn Complaint ¶¶115-122; R.R. 174a-75a (Sunoco failed to
provide an adequate public awareness program under 49 C.F.R. §195.440); DiBernardino
Complaint ¶¶22-32; R.R. 266a-68a (Sunoco failed to provide an adequate emergency planning and
25
Intervenors made no argument in post-hearing briefs with respect to depth of cover
or pipeline distancing. They sought neither injunctive relief nor a civil penalty under
49 C.F.R. §§195.210, 195.248 or 195.250.
We reject the Commission’s argument that a general citation to 52 Pa.
Code §59.33, which adopted Part 195 of the C.F.R., was sufficient to put Sunoco on
notice that it was charged with a violation of the specific requirements of 49 C.F.R.
§§195.210, 195.248 or 195.250. As in Duquesne Light Company and Pocono Water
Company, this lack of notice to Sunoco violated due process. Accordingly, we
reverse the Commission’s holding that Sunoco violated the pipeline depth of cover
and distance regulations.13
Public Awareness Program
Sunoco argues, next, that the Commission erred in ordering Sunoco to
make changes to its public awareness program that are not set forth in any state or
federal law. Further, the Commission’s adjudication is inconsistent with the ALJ’s
findings about Sunoco’s public awareness program implemented in Delaware and
Chester Counties.
The ALJ found that Sunoco does more training and funds more
equipment purchases than any other pipeline operator in the area. ALJ Initial
public awareness program under 49 C.F.R. §195.440); Britton Complaint ¶¶5, 11; R.R. 361a, 364a
(political subdivisions were not presented with adequate information from Sunoco to adequately
prepare and mitigate for the public health and safety under 49 C.F.R. §195.440); Obenski
Complaint ¶1; R.R. 635a-37a (Sunoco’s public awareness program failed to appropriately educate
all members of the community who are at risk from the operation of the Mariner East network);
and Andover Complaint ¶¶87, 93, 97, 98; R.R. 747a-49a (Sunoco’s public awareness program
leaves association members without either a credible notification system or emergency plan).
13
Because we reverse the Commission’s adjudication insofar that Sunoco violated the federal
pipeline depth of cover and distance regulations, we need not address Sunoco’s arguments that the
Commission misinterpreted these federal depth of cover and distance regulations because they
apply only to the construction of new pipelines, not to the maintenance or operation of an existing
pipeline. Likewise, we need not address Sunoco’s argument that, in any case, the findings of fact
relevant to a purported violation are not supported by substantial evidence.
26
Decision at 59, F.F. No. 320. The ALJ also found that Sunoco has informed the
municipalities and school districts in Delaware and Chester Counties of the location
of its pipelines and valve stations and their proximity to schools; the products in the
pipelines and their physical properties; the hazards of those products; a rule of thumb
for a safe distance in the event of a significant release; the direction of flow of
product in the pipelines; the product between the corresponding valve sites that will
be released in the event of a catastrophic release; plume modeling; Sunoco’s
integrity management, security and PHMSA compliance programs; and Sunoco’s
remote monitoring center for leak detection. ALJ Initial Decision at 60, F.F. No.
324.
These findings demonstrate Sunoco’s compliance with the minimum
requirements for its public awareness program set forth in 49 C.F.R. §195.440 and
API RP 1162. Nevertheless, the Commission concluded that Sunoco’s public
awareness program did not meet the requirement of “reasonable service” under 66
Pa. C.S. §1501 and, thus, imposed more requirements listed in Paragraph No. 18 of
its order. The Commission did so without citing any “authority mandating these
meetings or requiring Sunoco [] to undertake all the various elements of Order ¶18.”
Sunoco Brief at 59.
Sunoco argues that the Commission’s “reasonable service”
expectations are not grounded in an existing state or federal law. The ALJ
acknowledged in the Initial Decision that the Commission has undertaken
rulemaking in this area and is seeking comments regarding: (1) utility interaction
with local government officials on such topics as emergency planning and response
coordination and periodic drills with utility/municipal coordination; (2) periodic
public awareness meetings with municipal officials and the public; and (3)
enhancements to public utility public awareness programs under 49 C.F.R. §195.440and API RP 1162. ALJ Initial Decision at 77. Sunoco argues that the Commission
27
has imposed these proposed rulemaking requirements on Sunoco, in advance of their
adoption.
The Commission responds that as a public utility, Sunoco must provide
safe and reasonable service, which includes the obligation to “use every reasonable
effort to properly warn and protect the public from danger.” 52 Pa. Code §59.33(a).
The federal regulation at 49 C.F.R. §195.440 specifically requires enhanced
communication with local public officials where the pipeline is located in a high
consequence area, which includes Delaware and Chester Counties. The Commission
argues that Sunoco failed to meet this obligation.
The Commission asserts the Public Utility Code gives the Commission
the discretion to order a utility to take action in the interest of reasonable service
without a specific regulation. The Commission may “prescribe, by regulation or
order,” the “repairs, changes, alterations, extensions, substitutions, or improvements
in facilities as shall be reasonably necessary and proper for the safety,
accommodation, and convenience of the public.” 66 Pa. C.S. §1505(a) (emphasis
added).14 That the Commission is concurrently exercising its rulemaking power did
not prevent it from prescribing specific measures to address the safety and
reasonableness of Sunoco’s Mariner East pipeline system under authority of 66 Pa.
C.S. §1505(a).
14
It reads:
(a) General rule.--Whenever the commission, after reasonable notice and hearing,
upon its own motion or upon complaint, finds that the service or facilities of any
public utility are unreasonable, unsafe, inadequate, insufficient, or unreasonably
discriminatory, or otherwise in violation of this part, the commission shall
determine and prescribe, by regulation or order, the reasonable, safe, adequate,
sufficient, service or facilities to be observed, furnished, enforced, or employed,
including all such repairs, changes, alterations, extensions, substitutions, or
improvements in facilities as shall be reasonably necessary and proper for the
safety, accommodation, and convenience of the public.
66 Pa. C.S. §1505(a).
28
The Commission contends that its interpretation of the Public Utility
Code and its own regulations is entitled to deference. Commission Brief at 34 (citing
Crown Castle NG East LLC v. Pennsylvania Public Utility Commission, 234 A.3d
665, 678 (Pa. 2020)). The regulation at 49 C.F.R. §195.440 requires the public
awareness program to “be as comprehensive as necessary to reach all areas in which
the operator transports hazardous liquid[.]” 49 C.F.R. §195.440(f). The
Commission asserts that it acted “well within the purpose and intent” of the federal
regulations by prescribing reasonable public awareness measures appropriate for the
high consequence areas of Chester and Delaware Counties. Commission Brief at
49.
In addition, Section 1501 of the Public Utility Code requires safe and
reasonable service. It states:
Every public utility shall furnish and maintain adequate,
efficient, safe, and reasonable service and facilities, and shall
make all such repairs, changes, alterations, substitutions,
extensions, and improvements in or to such service and facilities
as shall be necessary or proper for the accommodation,
convenience, and safety of its patrons, employees, and the public.
Such service also shall be reasonably continuous and without
unreasonable interruptions or delay. Such service and facilities
shall be in conformity with the regulations and orders of the
commission.
66 Pa. C.S. §1501 (emphasis added). Consistent with Section 1501, the Commission
has promulgated 52 Pa. Code §59.33, which has adopted the federal regulations on
natural gas safety. It states, in relevant part, as follows:
(a) Responsibility. Each public utility shall at all times use every
reasonable effort to properly warn and protect the public from
danger, and shall exercise reasonable care to reduce the hazards
to which employees, customers and others may be subjected to
by reason of its equipment and facilities.
(b) Safety code. The minimum safety standards for all natural gas
and hazardous liquid public utilities in this Commonwealth shall
29
be those issued under the pipeline safety laws as found in 49
U.S.C.A. §§60101-60503 and as implemented at 49 CFR Parts
191-193, 195 and 199, including all subsequent amendments
thereto. Future Federal amendments to 49 CFR Parts 191-193,
195 and 199, as amended or modified by the Federal government,
shall have the effect of amending or modifying the
Commission’s regulations with regard to the minimum safety
standards for all natural gas and hazardous liquid public utilities.
52 Pa. Code §59.33(a), (b).
The federal regulation “prescribes safety standards and reporting
requirements for pipeline facilities used in the transportation of hazardous liquids[.]”
49 C.F.R. §195.0. With respect to “public awareness,” it states:
(a) Each pipeline operator must develop and implement a written
continuing public education program that follows the guidance
provided in the American Petroleum Institute’s (API)
Recommended Practice (RP) 1162 (incorporated by reference,
see §195.3).
(b) The operator’s program must follow the general program
recommendations of API RP 1162 and assess the unique
attributes and characteristics of the operator’s pipeline and
facilities.
(c) The operator must follow the general program
recommendations, including baseline and supplemental
requirements of API RP 1162, unless the operator provides
justification in its program or procedural manual as to why
compliance with all or certain provisions of the recommended
practice is not practicable and not necessary for safety.
(d) The operator’s program must specifically include provisions
to educate the public, appropriate government organizations,
and persons engaged in excavation related activities on:
(1) Use of a one-call notification system prior to
excavation and other damage prevention activities;
(2) Possible hazards associated with unintended
releases from a hazardous liquid or carbon dioxide
pipeline facility;
(3) Physical indications that such a release may
have occurred;
30
(4) Steps that should be taken for public safety in
the event of a hazardous liquid or carbon dioxide
pipeline release; and
(5) Procedures to report such an event.
(e) The program must include activities to advise affected
municipalities, school districts, businesses, and residents of
pipeline facility locations.
(f) The program and the media used must be as comprehensive
as necessary to reach all areas in which the operator transports
hazardous liquid or carbon dioxide.
****
(i) The operator’s program documentation and evaluation
results must be available for periodic review by appropriate
regulatory agencies.
49 C.F.R. §195.440 (emphasis added).
In sum, a pipeline operator must follow “the general program
recommendations, including baseline and supplemental requirements of API RP
1162[.]” 49 C.F.R. §195.440(c) (emphasis added). In turn, API RP 1162 defines,
in relevant part, “baseline public awareness program[,]” as
[r]efer[ring] to general program recommendations, set forth in
[API RP] 1162[.] The baseline recommendations do not take
into consideration the unique attributes and characteristics of
individual pipeline operators’ pipeline and facilities.
Supplemental or enhanced program components are described
in the RP to provide guidelines to the operator for enhancing its
Public Awareness Programs.
R.R. 1129a (emphasis added). Satisfying the “baseline recommendations” does not
preclude “enhanced program components.” Id. Accordingly, API RP 1162 states
that a “one-size-fits-all” Public Awareness Program across all pipeline systems
would not be the most effective approach. R.R. 1134a.
Relevant hereto, API RP 1162 includes Table 2.1, which sets forth the
baseline messages to be included in pipeline operators’ public awareness
31
communications. Table 2.1 then provides that in high consequence areas, or HCA,
pipeline operators should increase the frequency of their communications, provide
supplemental messages, and have personal contact with the local officials.
R.R. 1138a.15
Complainants had the burden to prove that Sunoco’s public awareness
program did not satisfy 66 Pa. C.S. §1501, which requires a utility to provide safe
15
NPMS stands for National Pipeline Mapping System. ROW stands for Pipeline Right-of-Way.
R.R. 1130a.
32
and reasonable service. Povacz v. Pennsylvania Public Utility Commission, 280
A.3d 975, 1005 (Pa. 2022) (citing Lansberry v. Pennsylvania Public Utility
Commission, 578 A.2d 600, 602 (Pa. Cmwlth. 1990)). Complainants presented
evidence that Sunoco’s CoRE meetings and MERO trainings did not provide the
information needed by local officials to develop their emergency response plans;
that Sunoco refused to meet with local public officials and emergency responders
outside the CoRE meetings and MERO trainings; that emergency responders, school
districts, and residents are confused and concerned over steps to be taken in a
pipeline emergency; and that local public officials found it difficult to obtain
additional information from Sunoco needed for emergency preparedness. The ALJ
found that because Delaware and Chester Counties have been designated high
consequence areas, Sunoco was “required to devote additional focus, effort and
analysis to ensure the integrity of its pipelines.” ALJ Initial Decision at 140.
Accordingly, “if the school districts and municipalities and counties want more
information and emergency responder training, then it is unreasonable service for
the operator to not oblige this request.” Id.The Commission agreed. Accordingly, the Commission ordered the
payment of a $1,000 civil penalty and directed Sunoco to arrange meetings with the
commissioners of Delaware and Chester Counties and with the relevant
municipalities’ supervisors to assist their emergency preparedness and evacuation
plans. Sunoco argues that this order exceeded the Commission’s statutory authority.
Sunoco Brief at 58-59 (citing Commission Adjudication, 11/18/2021, ¶18). We are
not persuaded.
Section 1505 of the Public Utility Code authorizes the Commission to
prescribe remedial action upon a violation of Section 1501 “as shall be reasonably
necessary and proper for the safety, accommodation, and convenience of the public.”
66 Pa. C.S. §1505. The language in both 49 C.F.R. §195.440 and API RP 1162
33
provides that a public awareness program must be adapted to meet the particular
circumstances and conditions present. The regulation specifically permits
“appropriate regulatory agencies” to review operators’ program documentation and
evaluation results. 49 C.F.R. §195.440(i). More specifically, Section 2.8 of API RP
1162, Table 2.1, provides that operators, in their communications with emergency
officials and local public officials, should address, inter alia, “pipeline purpose and
reliability,” “awareness of hazards and prevention measures undertaken,”
“emergency preparedness communications,” and “how to get additional
information.” R.R. 1138a. Where a pipeline is located in a high consequence area,
operators should have “personal contact” with local public officials and provide
supplemental messages including “[m]aintenance construction activity.” Id.Supplemental activity for communications with emergency officials should include
“emergency tabletop, deployment exercises,” “facility tour,” and “open house.” Id.We conclude that the remedial actions ordered by the Commission with
respect to Sunoco’s public awareness program fall within the scope of 49 C.F.R.
§195.440 and API RP 1162, which were adopted by the Commission at 52 Pa. Code
§59.33. These regulations authorized the Commission to order revisions in Sunoco’s
existing program to ensure the delivery of safe and reasonable service.
Notably, in adopting the ALJ’s Initial Decision, the Commission denied
Complainants’ requests to include information in Sunoco’s public mailers such as
“what a safe distance is before using a cellular phone, wind direction and other
means of transporting persons other than walking away and upwind from a release.”
ALJ Initial Decision at 140. These requests, as the ALJ concluded, are outside the
scope of state and federal law and, thus, should be referred to the Commission’s
rulemaking proceeding. The Commission’s injunctive relief was narrowly tailored
to address the ways in which Sunoco’s public awareness program, as implemented,
34
has not satisfied Section 1501 of the Public Utility Code and Section 59.33 of the
Commission regulations.
For these reasons, we affirm the Commission’s adjudication that
Sunoco’s public awareness program did not comply with 66 Pa. C.S. §1501 and 52
Pa. Code §59.33, and a civil penalty of $1,000.
Conclusion
Sunoco’s decision to discontinue transporting HVLs through ME1 and
the workaround pipelines did not render irrelevant the constraints imposed by the
Commission on Sunoco, which may decide to use the pipelines to transport HVLs
in the future. Accordingly, we deny the Commission’s motion to dismiss. We hold
that Sunoco’s purported violation of the pipeline depth of cover and distance
regulations set forth in 49 C.F.R. §§195.210(b), 195.248, and 195.250 was not a
matter at issue in the litigation before the Commission, and, thus, reverse the
Commission’s adjudication thereon. However, we hold that the Commission did not
err in concluding that Sunoco’s public awareness program failed to meet the
reasonable service standard required by 66 Pa. C.S. §1501. Accordingly, we affirm
the Commission’s adjudication requiring changes to Sunoco’s public awareness
program and the payment of a $1,000 civil penalty.
For these reasons, we affirm in part and reverse in part the
Commission’s adjudication.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
Judge Fizzano Cannon and Judge Wallace did not participate in the decision in this
case.
35
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sunoco Pipeline, L.P., : CASES CONSOLIDATED
Petitioner :
:
v. : Nos. 1415-1419 C.D. 2021
: No. 1421 C.D. 2021
Public Utility Commission, :
Respondent :
ORDER
AND NOW, this 5th day of May, 2023, the Public Utility
Commission’s motion to dismiss for mootness is DENIED. The Public Utility
Commission’s adjudication and order dated November 18, 2021, in the above-
captioned matter, is AFFIRMED in part and REVERSED in part in accordance with
the foregoing opinion.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita