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DEP Should Revoke Permits for Troubled Mariner East Pipeline

by Emma Bast, Staff Attorney

On October 5, Pennsylvania Attorney General Josh Shapiro announced 48 criminal charges related to construction of the Mariner East pipeline project, including one felony count of failing to report pollution. Yes, you read correctly, a corporation is facing criminal charges for its behavior. So how did we get here, and what does that mean for Mariner East, its parent company Energy Transfer, and Pennsylvania? Read on.

Energy Transfer Partners, the Texas-based pipeline company building the Mariner East pipeline, has been plagued by a litany of problems. The pipeline project has been rife with issues for years, and this most recent evidence has shown that despite the numerous fines and temporary shutdowns Energy Transfer has faced from the Department of Environmental Protection, these issues have continued unabated, reaching a level where the Pennsylvania Attorney General himself took notice.

After a years-long investigation, a grand jury released its findings. The report details the numerous serious environmental harms that took place at specific locations across Pennsylvania, including Raystown Lake, Loyalhanna Lake, and Marsh Creek Lake. Highlights of the 64 page document include:

  • In its rush to begin construction, “Sunoco and its prime contractors hired HDD subcontractors from across the country who were unfamiliar with Pennsylvania geology and water features as well as the regulatory landscape that existed in the state. The subcontractors applied their standard practices to an unusual environment, which resulted in environmental impacts.” And that “In addition to the problematic geology, this former Sunoco employee indicated that the people hired to do the work were young and with limited actual experience. Leaks and spills of drilling fluid began to occur almost immediately.”
  • Elsewhere, in Indiana County, drilling was stopped after the DEP issued a Notice of Violation due to another spill. The day after work resumed, there was another spill, which was not reported. This exact story was replayed later in the report at a site in Cambria County: a large spill, contaminated wetlands, work stoppage after a DEP Notice, with the only result that “the same thing happened again the next day.”
  • The scale of the leaks is difficult to wrap one’s head around: these were not small and minor leaks of only a few gallons of toxic drilling fluid. At one site, near the William Penn Highway, a loss of 65,000 gallons of drilling fluid went unreported. Imagine nine yellow school buses lined up next to each other. This was not a small amount of water by any stretch, and it happened again and again.
  • The report details testimony from a number of homeowners that Energy Transfer threatened to take their homes if they didn’t give Energy Transfer the right to build the pipeline across their land, sometimes promising they wouldn’t feel the effects of construction. Later, Energy Transfer threatened to take their houses when those whose water had been ruined tried to assert their rights. 
  • On top of leaking drilling fluid across the state, Energy Transfer used unapproved chemicals in that drilling fluid, meaning that not only did they leak chemicals into people’s wells and lakes, they did not even have permission to use those chemicals in the first place. 

All of these massive, systemic, and ongoing problems were carefully recorded by inspectors and geologists on site. These records were simply unreported to the DEP.

Further, and even more offensive, is that Energy Transfer straight-up lied to the DEP about the incidents: In an April 24, 2019 letter to DEP, Sunoco claimed that, due to inadvertent miscommunication, its management never learned of the losses of fluid. However, the evidence before the Grand Jury clearly indicated that this claim was “false.” In fact, a project manager for one drilling subcontractor told the Grand Jury that if something was not reported, it was not because people were not there to see it. Another Construction Manager testified that it was “preposterous” for someone to imply that Energy Transfer’s environmental team was unaware. Despite the citizen complaints, the obvious spills, and its own records, Energy Transfer tried to claim they somehow went unaware.

As the infamous saying goes, “Who’re you gonna believe: me, or your own lying eyes?”

The numerous, severe, repeated violations noted by the Grand Jury report—the details span over 50 pages—only encompass a mere 16% of the total number of horizontal drilling sites of the project. One wonders how long the Grand Jury report would be if even half of the sites were investigated.

So what does all this mean? First, we applaud the Attorney General for taking action against Energy Transfer, to try and bring some greater consequence to Energy Transfer, and to shine a brighter light onto their multitude of transgressions. It isn’t often that corporations themselves are held accountable for their actions, and we believe this to be a good step in the right direction here. Ultimately, we need to strengthen the laws themselves so that when the Attorney General needs to prosecute, they have a stronger sword with which to do so.

Second, one of the other crucial takeaways from the Grand Jury Report is that the Department of Environmental Protection was entirely too under-resourced to be able to effectively administer and oversee the level of violations here. This shows something that matches our common sense: it isn’t enough to simply pass regulations, but the agencies charged with carrying out laws and regulations must be provided with enough resources to effectively oversee them. 

However, the Department of Environmental Protection can still take swift and decisive action here to prevent even more harm. A number of advocates have called for the DEP to terminate Energy Transfer’s environmental permit, which allows them to do the work that is leaving a trail of environmental ruin and carnage in its wake.

The legal standard for the Department of Environmental Protection to terminate a permit is simple: When a permittee either has been shown to be in noncompliance with any condition of their permit, or the permittee misrepresents “any relevant facts at any time,” a permit can be terminated. How does this process start? That is also simple: either a person submits a written request that the permit be terminated, or information showing that there has been noncompliance is brought to the DEP’s attention, and they can take action of their own accord. The DEP can then begin the process of terminating the permit. It is clear that this simple legal standard has been met.

The Department of Environmental Protection should terminate the permits associated with the Mariner East pipeline immediately.

So what can you do today? Write to your representatives, and ask them to increase funding for long term oversight of environmental permits, and ask them what they are doing to make sure that Energy Transfer is not allowed to further poison the water and resources of hard working Pennsylvanians.

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