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Victory For Sunoco Pipeline in Second Round Before PUC

Public Utility Commission (PUC) Commissioners gave Sunoco Pipeline a fighting chance at exemption from local zoning for outbuildings housing utility structures on the Mariner East Pipeline, finding prima facie evidence that Sunoco is a public utility and overruling the ALJs’ July 23, 2014 Initial Decision granting preliminary objections finding to the contrary.

The Commissioners’ October 2, 2014 Motion dismissed the ALJs’ reasoning that relied on the unpredictable “to or for the public” standard to find lack of public utility status, instead focusing on the fact that pipeline routes and services have been certificated since the 1930s and the Commission’s July and August 2014 grant of certificates to Sunoco, finding this to be prima facie evidence of public utility status.  The Motion also criticized the reasoning of the ALJs, holding that wholesale service alone can constitute service to or for the public.

The Commission remanded what it termed the “narrow” issue in the case – whether to exempt from local zoning the buildings housing the 18 pump stations and 17 valve control stations Sunoco plans to install along the pipeline – noting this case does not concern approval of the overall Mariner East project or construction of the actual valve controls and pump stations.

In a procedural twist, the Commission also dismissed the parties’ other preliminary objections, including issues such as whether the Environmental Rights Amendment of the Pennsylvania Constitution prohibits Sunoco’s requested relief, even though the ALJs did not rule on these objections.  Commissioner Cawley dissented, arguing that the objectors should have the opportunity to get an ALJ ruling on these issues.  Given that these issues were resolved only through preliminary objections, which carry a high standard of proof and only prevent the case from going past the pleading stage, the ALJs and Commission will likely be presented with the questions again after the hearing.

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