PA.Gov
BEFORE THE
PENNSYLVANIA PUBLIC UTILITY COMMISSION
Meghan Flynn :
Rosemary Fuller :
Michael Walsh : P-2018-3006117
Nancy Harkins :
Gerald McMullen : C-2018-3006116
Caroline Hughes and :
Melissa Haines :
:
v. :
:
Sunoco Pipeline, L.P. :
ORDER GRANTING IN PART AND DENYING IN PART COMPLAINANTS’ MOTION FOR RECONSIDERATION OF SECOND INTERIM ORDER
On March 12, 2019, I issued a Second Interim Order denying in part and granting in part preliminary objections to Complainants’ Amended Complaint at C-2018-3006116. On or about March 21, 2019, Complainants filed a Motion for Reconsideration of Second Interim Order. On April 15, 2019, Sunoco Pipeline, L.P. (Sunoco or Respondent) filed an Answer Opposing Complainants’ Motion for Reconsideration of Second Interim Order. On April 17, 2019, Complainants filed a Reply Memo in Further Support of their Motion for Reconsideration. On May 16, 2019, Sunoco filed a Motion to Strike Filings Disallowed Pursuant to the Commission’s Rules of Practice and Procedure. In part, Sunoco moves to strike the Reply Memo (an answer to Sunoco’s Answer to Complainants’ Motion for Reconsideration of Second Interim Order) as it is procedurally incorrect, and fails to state additional grounds upon which relief may be granted. On May 29, 2019, Complainants filed an Answer to Sunoco’s Motion to Strike Filings. Complainants’ Motion for Reconsideration of Second Interim Order is ripe for a decision.
Complainants’ Position
Complainants request permission to file a Second Amended Formal Complaint and seek the issuance of an amended subpoena in response to the Second Interim Order. In Exhibit A, attached to their Motion, Complainants have replaced the stricken paragraph 74 of the Amended Complaint with paragraphs pleading the averments in a separate complaint at Pa. Pub. Util. Cmm’n, Bureau of Investigation and Enforcement v. Sunoco Pipeline, L.P., Docket No. C-2018-3006534. Paragraph 74 of the Amended Complaint stated: “Complainants hereby incorporate the averments of the BIE Complaint by reference thereto, as though set forth more fully at length hereinbelow.” Amended Complaint at 20.
Specifically, Complainants seek to aver that Sunoco’s failure to maintain a negative cathodic potential greater than -850 m V, failure to address microbiologic induced corrosion, failure to maintain proper records, and delay of an in-line inspection, among other things, are matters affecting Complainants that are relevant to Complainant’s claim that Sunoco has violated Section 1501, 66 Pa. C.S. § 1501. Complainants do not seek relief in Morgantown, Berks County, but only such relief as may require repairs or the cessation of service of pipelines located in Chester and Delaware Counties.
Additionally, Complainants contend that since filing their Amended Complaint, they learned for the first time that Sunoco may be operating or planning to operate segments of the 12-inch workaround pipeline in Delaware and Chester Counties at a higher pressure than has been tested and approved, higher than 1480 psi. Complainants request to newly aver that the 12-inch workaround pipe is or will be operated at 2100 psi, more than a 40% increase in pressure from 1480 psi that had been tested for in segments of Chester and Delaware Counties. Complainants seek to claim that this increased pressure increases the risk of a rupture of the 80-year old 12-inch workaround pipe in high consequence areas of Chester and Delaware Counties in an unsafe manner in violation of 49 CFR 195.406 and 195.106 and 66 Pa. C.S. § 1501. Accordingly, Complainants request an order modifying the Second Interim Order and granting Complainants leave to file a Second Amended Formal Complaint.
Also, Complainants request reconsideration of the denial of the petition for issuance of a subpoena upon the Bureau of Investigation and Enforcement (I&E). Complainants have amended their request to records and documents turned over to I&E at any time by Sunoco that contain information related in whole or in part to the following actions or omissions of Sunoco including: 1) failing to maintain a negative cathodic potential greater than -850 mV; 2) failure to address microbiologic induce corrosions; 3) ignoring unfavorable side drain measurements that showed current was dangerously flowing away from the pipeline; 4) ignoring side drain measurements suggestive of corrosion; 5) performing CIPS improperly; 6) failing to maintain proper records; 7) delaying an in-line inspection; 8) paying no heed to obvious metal loss; 9) failing to document how it would comply with the requirements of 49 CFR § 195.573; and 10) failing to comply with § 195.571. Additionally, Complainants request records and documents created by I&E in its investigation of the Morgantown Incident other than those protected by privilege.
Sunoco Pipeline, L.P.’s Position
Conversely, Sunoco contends that the additional allegations in a proposed Second Amended Formal Complaint are moot because I&E and Sunoco have reached a settlement at C-2018-3006534, giving the Complainants their requested relief and there is no point in granting a subpoena to further investigate those I&E claims. Sunoco contends it would be prejudiced by allowing the Complainants an opportunity to add allegations that are neither new nor novel. Instead, Complainants are copying allegations I&E made that Complainants were aware of at the time of filing their Amended Complaint. Sunoco argues the Second Interim Order was correct that Complainants’ standing is limited to Chester County and Delaware County, and allowing Complainants to litigate claims stemming from an incident in Morgantown, Berks County, exceeds that standing and is prejudicial, requiring Sunoco to defend itself in two concurrent and substantively similar complaint proceedings. Sunoco also argues reconsideration of the Second Interim Order cannot be based upon facts advanced via a new filing and the I&E Complaint is not a “new or novel averment.” Thus, in accordance with Duick v. PG&W, 56 Pa. P.U.C. 553 (1982) (Duick), no permission to file a Second Amended Complaint should be granted.
Sunoco denies it is operating any pipeline higher than pressure allowed under regulations at 49 CFR Part 195. Sunoco contends the ME2X, a 16-inch pipeline is being designed and tested for a maximum operating pressure (MOP) of 2100 psi, which is within the federal regulations at 49 C.F.R. Part 195. Sunoco avers the hybrid pipeline will operate with an MOP of 1480 psi west of Fairview Road and an MOP of 1200 psi east of Fairview Road, Middletown Township, Delaware County at the Glen Riddle Junction. At the Glen Riddle Junction, the 16-inch pipeline that will be ME2X when complete is used into the Twin Oaks Facility. Sunoco contends there is no regulatory approval for the MOP of these pipelines as it is not a factor the Department of Environmental Protection (DEP) considers in a permitting process.
Further, Sunoco requests denial of the Complainants’ motion to amend its application for issuance of a subpoena to I&E. Even amended, the application is overly broad and tantamount to a “fishing expedition.” Sunoco contends the documents sought are privileged and contain Confidential Security Information (CSI).
Disposition
The motion for reconsideration is regarding an interim order, not a final appealable Commission order. As such, I am not convinced that the standards for a petition for relief following the issuance of a final decision as addressed in Duick apply to the instant case. Duick held that a petition for rehearing under Subsection 703(f) of the Code, 66 Pa. C.S. § 703(f), must allege newly-discovered evidence not discoverable through the exercise of due diligence prior to the close of the record. Duick at 558. A petition for reconsideration under Subsection 703(g), 66 Pa. C.S. § 703(g), however, may properly raise any matter designed to convince the Commission that it should exercise discretion to amend or rescind a prior Order, in whole or in part. Furthermore, such petitions are likely to succeed only when they raise “new and novel arguments” not previously heard or considerations which appear to have been overlooked or not addressed by the Commission. Duick at 559.
Leave to amend a complaint is not permitted where there is an error of law or resulting prejudice to an adverse party. Piehl v. City of Philadelphia, 601 Pa. 658, 672 (2009) citing Connor v. Allegheny Gen. Hosp., 461 A.2d 600, 602 (Pa. 1983). The doctrine of lis pendens, first recognized in Hessenbruch v. Markle, 194 Pa. 581, 593, 45 A. 669 ,691 (1900), was designed to protect a defendant from having to defend several suits on the same cause of action at the same time. The prior case, the parties, and the requested relief must be the same for the doctrine to bar a suit. Hillgartner v. Port Authority of Allegheny County, 936 A.2d 131, 137 (Pa. Cmwlth. 2007). Additionally, the prior action must be pending. Norristown Auto Co. v. Hand, 562 A.2d 902 (Pa. Super. 1989). Once the defense is raised, a court may dismiss or stay the subsequent proceedings. If the identity test is not strictly met, but the action involves a set of circumstances where the litigation of two suits would create a duplication of effort on the part of the parties, waste judicial resources and “create the unseemly spectacle of a race to judgment” the trial court may stay the later-filed action. Crutchfield v. Eaton Corp., 806 A.2d 1259 (Pa. Super. 2002).
“Prior to judicial resolution of a dispute, an individual must as a threshold show that he has standing to bring the action.” Stilp v. Commonwealth, 927 A.2d 707, 710 (Pa. Cmwlth. 2007). The seminal case for standing is William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975), which states that a person who is not adversely affected by the matter he seeks to challenge is not “aggrieved” and, therefore, has no standing to obtain judicial relief.
To establish an “aggrieved” status, a party must have a substantial interest, that is, there must be some discernible adverse effect to some interest other than the abstract interest of all citizens having to comply with the law. Additionally, an interest must be direct, which means that the person claiming to be aggrieved must show causation of the harm to his interest and not a remote consequence of the judgment, a requirement addressing the nature of the causal connection. Pilchesky v. Doherty, 941 A.2d 95 (Pa.Cmwlth. 2008).
None of the Flynn Complainants have averred that they reside, work or attend school in Morgantown, Berks County. They argue they are not requesting relief in Morgantown, but rather in Chester and Delaware Counties. Although the I&E complaint addresses general practices in addition to a specific leak incident in Morgantown, the Flynn Complainants do not have the same standing as I&E to bring an action regarding reasonableness of service across the Commonwealth of Pennsylvania. This is not a class-action lawsuit. The Complainants do not have the statutory authority under 66 Pa.C.S. §§ 308 and 701 as well as 52 Pa.Code § 1.8 as I&E to bring such a complaint against Respondent.
The Flynn Complainants have not averred that they were personally aggrieved by the leak incident in Morgantown. They may elect to petition to intervene in the I&E complaint proceeding. The averments in I&E’s complaint will be addressed in that proceeding. I am unpersuaded to expand the scope of the instant case to essentially include all issues currently pending before the Commission at Docket No. C-2018-3006534, given the similarity of the concurrently pending proceeding and the doctrine of lis pendens. It is not reasonable to require Sunoco to defend itself in two concurrent complaint proceedings involving identical allegations when the issues may be addressed and potentially resolved in the I&E complaint proceeding, prior to a resolution of the instant case. This is also more judicially efficient. I reiterate my prior statement in the Second Interim Order:
In the event that this relief requested becomes moot at a future date because it occurs as a result of the resolution of the I&E complaint proceeding, it may be denied as moot or Complainants may withdraw this request for relief.
Second Interim Order at 8.
At Public Meeting on May 23, 2019, Commissioner John F. Coleman, Jr.’s Motion passed[1] referring the complaint proceeding initiated by I&E at C-2018-3006534, including five pending Petitions to Intervene[2] and Answers in Opposition thereto, as well as the Petition for Joint Settlement, and an Answer in Opposition to the Joint Petition[3], to the Office of Administrative Law Judge (OALJ) to designate a presiding officer, for such further proceedings and hearings, as deemed necessary. Although I&E and Sunoco have submitted a Joint Petition for Approval of Settlement, it has yet to be approved by a final Commission order. Any outstanding petitions to intervene will be considered and ruled upon in that proceeding. Persons and entities seeking to intervene in that proceeding will be given an opportunity to be heard and potentially an opportunity to submit statements in support of or in opposition of the settlement.
I am persuaded to allow the Flynn Complainants to file a Second Amended Complaint to aver claims that Sunoco intends to transport HVLs through a hybrid of pipelines specifically in Delaware and Chester Counties at inappropriate maximum operating pressures. Also, Complainants may request a remaining life study regarding not only the ME1 pipeline but also the workaround 12-inch pipeline, which differs from the I&E complaint. Sunoco will have twenty days from the date of service of the Second Amended Complaint to file an Answer and other responsive pleadings.
Regarding the petition to amend an Application for Issuance of Subpoena, I am unpersuaded to grant this request for similar reasons previously stated in the Second Interim Order. Both applications seek records and documents turned over to the Commission’s Safety Division of I&E by Sunoco pursuant to certain allegations regarding the Morgantown Incident. Additionally, Complainants still seek records and documents created by I&E in its investigation of the Morgantown Incident (other than those protected by privilege).
Requests for Sunoco’s documents should be addressed to Sunoco, not I&E. 52 Pa. Code. § 5.361(a)(3). The documents requested are exempt from disclosure under the attorney work product privilege and attorney-client privilege. Additionally, offers of settlement are privileged and not discoverable. Finally, the request is overbroad and unduly burdensome on I&E. 52 Pa. Code § 5.361(a)(4). The Subpoena defines the scope of the records sought as any records related to the Morgantown Incident provided to and/or created by BIE, including “without limitation, correspondence, memoranda, notes, diaries, statistics, letters, telegrams, minutes, releases, agendas, opinions, reports, studies, test results…” Motion for Reconsideration, Exhibit B. This unrestrained request implicates records subject to the deliberative process privilege that would expose confidential deliberations of law reflecting agency opinions, recommendations and advice related to I&E’s prosecutorial and investigatory determinations, including initiation of the formal complaint at C-2018-300653. Commonwealth v. Pa. Pub. Util. Comm’n, 331 A.2d 598 (Pa. Cmwlth. 1975) (finding PUC technical staff reports used to determine the appropriateness of utility tariff changes were not discoverable because they revealed the PUC's decision-making process). See also, Columbia Gas Transmission Corp. v. Piper, 615 A.2d 979 (Pa. Cmwlth. 1992) (party may not use expert report of another party); see also, Spino v. John S. Tilley Ladder Co., 671 A.2d 726 (Pa. Super. 1996), aff’d, 696 A.2d 1169 (Pa. 1997) (party may not use subpoena to compel an expert opinion). The Motion for Reconsideration will also be denied pertaining to documentation marked as CSI, because each must be reviewed for redaction of confidential and privileged information, which is unduly burdensome. 52 Pa. Code. § 5.361(a)(2). Complainants may seek CSI information through discovery requests directed to Sunoco pursuant to a protective order in this case.
ORDER
THEREFORE,
IT IS ORDERED:
1. Complainants Meghan Flynn, Michael Walsh, Rosemary Fuller, Nancy Harkins, Gerald McMullen, Caroline Hughes and Melissa Haines’ Motion for Reconsideration of Second Interim Order is granted in part and denied in part.
2. Complainants are granted leave to file a Second Amended Complaint consistent with the body of this Order within ten (10) days of the date of issuance of this Order.
3. Sunoco Pipeline, L.P. is granted leave to file responsive pleadings to any Second Amended Complaint within twenty (20) days from the date the Second Amended Complaint is filed and service is perfected.
4. Complainants’ request to Amend and Application for Issuance of Subpoena is denied.
5. Sunoco Pipeline, L.P.’s Motion to Strike Filings Disallowed Pursuant to the Commission’s Rules of Practice and Procedure is denied.
Dated: June 6, 2019 /s/
Elizabeth H. Barnes
Administrative Law Judge
C-2018-3006116 et. al.- MEGHAN FLYNN et. al. v. SUNOCO PIPELINE LP
(Revised 6.6.19)
MICHAEL BOMSTEIN ESQUIRE
PINNOLA & BOMSTEIN
SUITE 2126 LAND TITLE BUILDING
100 SOUTH BROAD STREET
PHILADELPHIA PA 19110
215.592.8383
Representing Complainants
MEGHAN FLYNN
212 LUNDGREN ROAD
LENNI PA 19052
Complainant
ROSEMARY FULLER
226 VALLEY ROAD
MEDIA PA 19063
610.358.1262
Accepts E-Service
Complainant
MICHAEL WALSH
12 HADLEY LANE
GLEN MILLS PA 19342
Complainant
NANCY HARKINS
1521 WOODLAND RD
WEST CHESTER PA 19382
484.678.9612
Accepts E-Service
Complainant
GERALD MCMULLEN
200 HILLSIDE DRIVE
EXTON PA 19341
Complainant
CAROLINE HUGHES
1101 AMALFI DRIVE
WEST CHESTER PA 19380
484.883.1156
Accepts E-Service
MELISSA HAINES
176 RONALD ROAD
ASTON PA 19014
Complainant
CURTIS STAMBAUGH ASSISTANT GENERAL COUNSEL
SUNOCO PIPELINE LP
212 N THIRD STREET SUITE 201
HARRISBURG PA 17101
717.236.1731
Accepts E-Service
Representing Sunoco Pipeline LP
NEIL S WITKES ESQUIRE
ROBERT D FOX ESQUIRE
DIANA A SILVA ESQUIRE
MANKO, GOLD, KATCHER & FOX LLP
401 CITY AVENUE
VALA CYNWYD PA 19004
484.430.2314
484.430.2312
484.430.2347
Accepts E-Service
Representing Sunoco Pipeline LP
THOMAS J SNISCAK ESQUIRE
HAWKE MCKEON AND SNISCAK LLP
100 N TENTH STREET
HARRISBURG PA 17101
717.236.1300
Accepts E-Service
Representing Sunoco Pipeline LP
RICH RAIDERS ATTORNEY
606 NORTH 5TH STREET
READING PA 19601
484.509.2715
Accepts E-Service
Representing Intervenor Andover Homeowners’ Association Inc.
ANTHONY D KANAGY ESQUIRE
GARRET P LENT ESQUIRE
POST & SCHELL PC
17 N SECOND ST 12TH FL
HARRISBURG PA 17101-1601
717.612.6034
Accepts E-Service
Representing Intervenor Range Resources Appalachia
ERIN MCDOWELL ESQUIRE
3000 TOWN CENTER BLVD
CANONSBURG PA 15317
725.754.5352
Representing Intervenor Range Resources Appalachia
LEAH ROTENBERG ESQUIRE
MAYS CONNARD & ROTENBERG LLP
1235 PENN AVE
SUITE 202
WYOMISSING PA 19610
610.400.0481
Accepts E-Service
Representing Intervenor Twins Valley School District
MARGARET A MORRIS ESQUIRE
REGER RIZZO & DARNALL
2929 ARCH STREET 13TH FLOOR
PHILADELPHIA PA 19104
215.495.6524
Accepts E-Service
Representing Intervenor East Goshen Township
VINCENT MATTHEW POMPO ESQUIRE
LAMB MCERLANE PC
24 EAST MARKET ST
PO BOX 565
WEST CHESTER PA 19381
610.701.4411
Accepts E-Service
Representing Intervenor West Whiteland Township
MARK L FREED ESQUIRE
JOANNA WALDRON ESQUIRE
CURTIN & HEEFNER LLP
DOYLESTOWN COMMERCE CENTER
2005 S EASTON ROAD SUITE 100
DOYLESTOWN PA 18901
267.898.0570
Accepts E-Service
Representing Intervenor Uwchlan Township
JAMES R FLANDREAU
PAUL FLANDREAU & BERGER LLP
320 WEST FRONT ST
MEDIA PA 19063
610.565.4750
Accepts E-Service
Representing Intervenor Middletown Township
PATRICIA BISWANGER ESQUIRE
PATRICIA BISWANGER
217 NORTH MONROE STREET
MEDIA PA 19063
610.608.0687
Accepts E-Service
Representing Intervenor County of Delaware
ALEX JOHN BAUMLER ESQUIRE
LAMB MCERLANE PC
24 EAST MARKET ST
BOX 565
WEST CHESTER PA 19381
610.701.3277
Accepts E-Service
Representing Intervenor Downingtown Area School District, et al.
GUY DONATELLI ESQUIRE
LAMB MCERLANE PC
24 EAST MARKET ST
BOX 565
WEST CHESTER PA 19381
610.430.8000
Representing Intervenor Rose Tree Media School District
JAMES DALTON
UNRUH TURNER BURKE & FREES
PO BOX 515
WEST CHESTER PA 19381
610.692.1371
Representing Intervenor West Chester Area School District
JAMES BYRNE ESQUIRE
MCNICHOL BYRNE & MATLAWSKI PC
1223 N PROVIDENCE RD
MEDIA PA 19063
610.565.4322
Accepts E-Service
Representing Intervenor Thornbury Township
MELISSA DIBERNARDINO
1602 OLD ORCHARD LANE
WEST CHESTER PA 19380
484.881.2829
Accepts E-Service
VIRGINIA MARCILLE KERSLAKE
103 SHOEN ROAD
EXTON PA 19341
215.200.2966
Accepts E-Service
Intervenor
LAURA OBENSKI
14 S VILLAGE AVE
EXTON PA 19341
484.947.6149
Accepts E-Service
REBECCA BRITTON
211 ANDOVER DR
EXTON PA 19341
215.776.7516
Accepts E-Service
JOSH MAXWELL
MAYOR OF DOWNINGTOWN
4 W LANCASTER AVENUE DOWNINGTON PA 19335
Intervenor
THOMAS CASEY
1113 WINDSOR DR
WEST CHESTER PA 19380
Intervenor
KELLY SULLIVAN ESQUIRE
MCNICHOL BYRNE & MATLAWSKI
1223 NORTH PROVIDENCE RD
MEDIA PA 19063
610.565.4322
Accepts E-Service
Representing Thornbury Twp.
MICHAEL P PIERCE ESQUIRE
MICHAEL P PIERCE PC
17 VETERANS SQUARE
PO BOX 604
MEDIA PA 19063
610.566.0911
Accepts E-Service
Representing Edgemont Twp.
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[1] It is noted that Commissioners Andrew G. Place and Vice Chairman David W. Sweet issued a Joint Statement concurring in result only. As of the date of issuance of this Order, the Commission has not yet entered an Opinion and Order referring the complaint proceeding to OALJ.
[2] Petitions to Intervene in the Formal Complaint proceeding at C-2018-3006534 either were filed by, or on behalf of, Thomas Casey, West Goshen Township, Josh Maxwell, West Whiteland Township, and Edgmont Township.
[3] The instant Flynn Complainants have opposed the Settlement; however, they have not petitioned to intervene in the C-2018-3006534 proceeding.
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