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.