Author: James S. Tupitza

2/17/2017

West Goshen Township, in Chester County has filed a complaint with the Public Utilities Commission against Sunoco Pipeline, LP over the Mariner East pipeline.  The suit alleges a breach of an agreement with the township.

The Pipelines

Sunoco Pipeline, L.P.  in recent years repurposed a pipeline that used to deliver gasoline and other refined products from the former Sunoco Refinery in Marcus Hook, Pa (Delaware County) to a distribution point in Washington County, south of Pittsburgh.  That pipeline now flow the other direction, bringing Marcellus Shale products to Marcus Hook.  Sunoco is adding at least one other line called Mariner East II.

The Agreement with West Goshen

West Goshen negotiated a deal with Sunoco to protect the residents of West Goshen.  The deal was extensive and, among other things, required Sunoco to construct two remotely operated valves before the end of 2015.  The valves would permit the isolation of segments of the pipeline in the event of an emergency.  In addition, Sunoco agreed to limit its right to build above-ground facilities without first notifying the Township.  Lawyers from this firm relied on this agreement when negotiating additional protection for our clients.

The Alleged Breach

West Goshen alleges only one of the remotely operated valves has been installed.  In addition, it alleges an above ground valve for Mariner East II is being constructed, without notice, near Boot Road and Greenhill Road.  West Goshen has requested the PUC to issue an Order declaring a violation of the settlement agreement.  This firm is carefully monitoring the case.

September 26, 2016, Delaware County, PA.   The Middletown (Delaware County, PA) Coalition for Community Safety is presenting an emergency application for an Injunction today to delay the vote by the Township of Middletown, in connection with the granting of easements to Sunoco Pipeline, LP (“SPLP”), for its Mariner East II pipeline.

The group is asking the court to declare Middletown Township Council’s failure to consider independence evidence of the safety of the Mariner East II pipeline, as a violation of the constitutional rights of Township residents and businesses.

The 19-page filing (with 83 pages of exhibits) represents that SPLP:

1. told the Township Council that its new pipeline would be built 4222 feet away from a school when in fact it is 800 feet from the center of the school, and 650 feet from the playground;
2. informed Council that has an excellent safety record when in fact publicly available information shows it has the worst safety record in the industry;
3. fossil informed Council that he has an emergency evacuation plan, when in fact the plan does not provide a reasonable protocol consistent with the potential blast wave from an odorless, tasteless product being transported in the pipeline;
4. falsely informed Council it has an emergency evacuation plan consistent with public safety when in fact it’s plan does not account for the fact that the liquids and gas that escape have no load or are invisible in our flammable with the smallest heat or electrical source and that the blast wave pack so much energy that catastrophic loss of life and property are inevitable;

The Delaware County Court will consider the matter today, prior to tonight’s township meeting.

Todays filings:  Petition   Exhibits 

In July, 2016, the United States Environmental Protection Agency issued a four-page letter to FERC (the Federal Energy Regulation Commission), raising questions about Transco’s Atlantic Sunrise Pipeline, proposed to be built through Pennsylvania.

The 30-inch pipeline is designed to carry natural gas from Marcellus Shale production areas to Transco’s Pooling Point in Choctaw County, Alabama. For about 28% of its 197.7 PA miles, the pipeline will be co-located within, or adjacent to existing pipelines, and or electrical transmission utility rights-of-way.

Transco’s Draft Environmental Impact Statement (DEIS) created concern to the EPA, because it put forward Transco’s preferred proposal for pipe location, and did not fully study alternatives, including one alternative by which expansion of the existing PennEast Pipeline by 80 miles, could entirely eliminate the need for the Atlantic Sunrise Pipeline.

EPA expressed concern about direct, secondary and cumulative impacts to water resources, including groundwater, wetlands and waterways, and recommended full assessment of impacts to these types of resources. In addition, EPA noted there would be “large impacts” to terrestrial resources including forests and the habitats of forest interior dwelling species.

EPA noted that there is a complex infrastructure, including natural gas wells, gathering lines and other natural gas transmission facilities, that all interact with the proposed Atlantic Sunrise Pipeline. EPA recommended that FERC should actively “unravel and describe the highly complicated, interrelated network of pipelines.”

EPA summarized its review of the Draft Environmental Impact Statement, by concluding the statement had “Insufficient Information.”

DEP Issues Technical Deficiency Notice for Chester County Chapter 105 Application of Sunoco Pipeline for Mariner East II.

On September 6, 2016, the PA DEP issued a Technical Deficiency Notice to Sunoco Pipeline, L.P. regarding its Mariner East II Pipeline in Chester County, PA. There will be similar notices for every county in which the Mariner East II Pipeline is to be constructed. The notice related to Sunoco’s application for permits under Chapter 105, Dam Safety and Waterway Management Regulations.

Chapter 105, in non-technical terms, governs the crossing of streams, wetlands and other waterways. It also governs erosion and sedimentation controls.

A Sampling of the Deficiencies

The Technical Deficiency Notice comprises 21 pages of single spaced comments. Here is a sample of some of the deficiencies:

• provide details of each stream and wetland crossing, together with associated erosion and sedimentation controls;
• provide site plans depicting work within a floodway or floodplain;
• provide detail on any proposed cathodic protection;
• identify all locations for horizontal direct drilling work, and all temporary crossings of wetlands associated with this work;
• provide actual floodway boundaries as opposed to assuming floodway’s are within 50 feet of stream;
• revised plans to delete stockpiling of soil in wetlands;

Safety Issues-Private Wells

The types of comments listed above are normally associated with a Chapter 105 application.  A significant requirement is found on page 17 of the report: “the application will need a comprehensive Preparedness Prevention Contingency Plan (PPC) combined with the Inadvertent Release Plan (IRP). The plan needs to include downstream notification lists of public and other water intakes and public and private water wells along the ROW, noting those water users along areas where HDD will be utilized.”

The report notes that Sunoco talked about wanting to protect private water supplies but did not include a formal plan doing so. The DEP suggested four possible options:

• map where the pipeline crisis sensitive geology and aquifers;
• locate and identify contact information for drinking water wells in the vicinity of the pipeline;
• acknowledge that within one half mile wells are potentially vulnerable over a long period of time and within 400 feet wells are vulnerable in a short time after he release; and
• water quality sampling and analysis of nearby wells could monitor quality impacts.

Summary 

Sunoco Pipeline, L.P. has a lot of additional work to complete before PA DEP will issue its permits.  The requirements related to neighboring wells may significantly increase their burden, but will help to speed emergency notification to neighboring well owners.

Our firm represents many landowners who have had to deal with new pipeline easements.  Whether it is the Sunoco Mariner East series of lines, the Columbia Lines, Eastern Shore Natural Gas, the Williams Atlantic Sunrise, Constitution Pipeline or any other pipeline, there are lingering issues you need to consider:

Sooner or later, most of us will sell all the real estate we own.  What would you think if I told you that you would be in default under the contract, the minute you signed it?

Let’s take this apart and discuss residential real estate first.  Most homes are sold with contracts using the Pennsylvania Association of Realtors^® form.  That form requires a Seller to deliver a special warranty deed at closing.  A special warranty deed is one in which you, the seller, warrant that you have not done anything to diminish the absolute title to the property received by you.  Guess what?  The execution of an easement for a pipeline diminishes the title to your property.

Why is this important?  Let me give you a very realistic example.  You are at closing; the buyer wants money, because they saw something during the walk through.  You say no.  They say ‘give me a $5000 credit or I will not buy the house.’  You say, ‘you are in default and I will take your deposit.’  They say, ‘OK deliver to me a special warranty deed, and I will immediately sue you for the money you were paid by the pipeline company.”   Oops, they have you.

What is the solution?  First, prior to signing a contract, make reference to the pipeline easement in your sellers’ disclosure. Next, you need to modify the agreement of sale. The reason is you need to be obligated to deliver a deed of special warranty, excepting the pipeline easement you have executed. Finally, at the time of closing, you need to modify the warranty provision in the deed to exclude from the warranty anything related to the pipeline easement.

If you signed a pipeline easement, print this page out and put it where you can find it when you want to sell.

If you have a commercial property, the issue may be even more dangerous.  That is because buyers often spend considerable money on due diligence.  If a buyer has spent $20,000 before they learn you cannot deliver a special warranty deed, you will not have a pleasant day.