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District Attorney Opens Criminal Investigation Into Mariner East Pipeline Project

STATEIMPACT PENNSYLVANIA - The Chester County District Attorney said Wednesday he is opening a criminal investigation into Sunoco's Mariner East pipeline project because it has caused sinkholes, contaminated water and has resulted in "not so subtle bullying" of residents.

District Attorney Thomas Hogan said potential charges include causing or risking a catastrophe, criminal mischief, environmental crimes, and corrupt organizations. Charges could be aimed at individual workers or corporate officers, he said in a news release.

Hogan said the investigation was prompted by the explosion of a natural gas pipeline owned by Energy Transfer, Sunoco's parent, in Beaver County in September, and by a visit he paid at Thanksgiving to Lisa Drive, a suburban development in West Whiteland Township where sinkholes started to appear on a Mariner East construction site late last year.

"The concerns and fears of those citizens were both disturbing and heart-wrenching," Hogan said in the news release.

His statement said state regulators and Gov. Tom Wolf had not "assured the safety of Pennsylvanians," and so he had decided to take his own action. Hogan said Sunoco has been informed of the investigation.

Sunoco said it was surprised to hear that Hogan thinks there's a legal basis to investigate. The company strongly denied any wrongdoing, and said there were many inaccuracies in the DA's press release.

"We are confident that we have not acted to violate any criminal laws in the Commonwealth of Pennsylvania and we are committed to aggressively defending ourselves against these baseless allegations," said Vicki Granado, a spokeswoman for Energy Transfer.

She said the company has worked with the PUC and DEP to address citizens' concerns, and said that process is described on the websites of those agencies.

"We look forward to opening a dialogue with the District Attorney's Office in the hope that we can bring this matter to an appropriate resolution," Granado said. "The safety of all those who live and work along our pipeline is our first priority and this project was planned and implemented based on that fact."

Sunoco says Mariner East 2 is scheduled to begin operating by the end of 2018.

Hogan said the project has experienced "significant problems" since it began construction in February 2017.

"This investigation will not be easy," he said. "It will take time to dig into the historical information and we will need to constantly monitor any future activity. But we are committed to protecting Chester County."

In an interview, Hogan said the sinkholes at Lisa Drive show that the project has actually endangered life and property.

"So right away, you've gone from hypothetical harms, hypothetical damages, which is what everyone was asking about for the last year and a half, to something that actually damaged people. Something that is actually starting to put both property and people into danger," he said.

He also said he's concerned about parallels between Chester County and Beaver County, where the Energy Transfer pipeline exploded in September.

"If they know that they have pipelines going through Chester County that have the exact same risk factors as the pipeline that blew up in Beaver County, then we've got a problem here in Chester County," he said.

Hogan said in the news release that only Wolf and the PUC have the authority to shut the lines down, "and neither has shown any inclination to do so," so Chester County will ensure that the project complies with criminal law.

Nils Hagen-Frederiksen, a spokesman for the PUC, responded to the investigation by listing a series of actions the PUC is taking to regulate Mariner East.

They include last week's formal complaint filed by the PUC's Bureau of Investigation and Enforcement in response to a leak of natural gas liquids from the Mariner East 1 line at Morgantown, Berks County in April 2017. On Tuesday, the bureau denied it had said one of the Mariner pipelines is safe, contradicting a statement by Sunoco during a recent hearing on a case by seven eastern Pennsylvania residents who are seeking a PUC order to shut down the project.

Among the other PUC actions was an order to shut down operations of Mariner East 1 from March to June this year, Hagen-Frederiksen said.

"Our experienced investigators remain focused on the mission of enforcing Pennsylvania's safety regulations - which includes inspections, investigations and enforcement actions - and the Commission will not hesitate to take appropriate action based on the facts, the evidence and the law," he said.

J.J. Abbott, a spokesman for Wolf, said state agencies have provided "unprecedented oversight" on the pipeline project, imposing many "stringent and aggressive" special conditions on the project to protect the environment, and enforcing them. The conditions have been designed, among other things, to protect public and private water supplies before construction begins, he said.

"The commonwealth is living up to our promise to hold this project accountable to the strong protections in the permits and our abilities under existing law," Abbott wrote in an email. "We welcome any partners who want to constructively talk about improving state oversight."

For his part, Hogan directed Sunoco to preserve a long list of potential evidence in the investigation. The information includes email that mentions terms such as "pipeline," "sinkhole" or "inadvertent return," and electronically stored data such as documents, spreadsheets and pdfs.

The investigation, announced less than two weeks before the scheduled start of operations, is the latest challenge for a project that has been shut down by regulators or courts three times, and has been issued dozens of environmental violations for spills of drilling fluid.

In July 2017, some residents in West Whiteland Township lost the use of their private wells after Sunoco punctured an aquifer.

The investigation appears to be the first of its kind to target a pipeline project anywhere, said Rich Raiders, an environmental and land-use attorney who represents clients who are fighting Sunoco's use of eminent domain to build the pipelines on their land.

"Usually we would expect law enforcement to investigate incidents, such as injuries, fatalities, damage or threats to the infrastructure," Raiders said. "A criminal investigation into a pipeline without a specific defining event is rare. "

He said the DA has a right to investigate "risk of catastrophe" under state law, and would need to show that the party has been reckless by knowing that the risk is unreasonable but has proceeded with the project anyway.

But it would be hard to prove that Sunoco knew the pipelines weren't safe and went ahead anyway, Raiders said.

"The DA's office will have its work cut out to show motive that it knew the pipelines weren't adequately safe and the operator proceeded anyway," he said.

Any charges brought under a corrupt organizations statute could include other parties, such as contractors, but those accusations would result in a great deal of discovery before any charges would be filed, he said.

State Sen. Andy Dinniman (D-Chester), a persistent critic of Mariner East, welcomed the investigation, and repeated his call for the project to be shut down until its safety is assured.

He said the investigation follows actions in recent days by the PUC's Bureau of Investigations and Enforcement, and that lawmakers from both parties in Harrisburg are supporting regulations to improve pipeline safety.

"It's good to see that others seem to be beginning listen and hopefully, to act," Dinniman said.

Del-Chesco United for Pipeline Safety, a coalition of community groups in Delaware and Chester counties, said it will be providing information to the DA regarding potential charges on catastrophe and corrupt organizations.

"Mariner East poses a deadly risk to the safety of our communities," said Ginny Kerslake, a spokeswoman for the group, which is "pleased to see the Chester County District Attorney recognize this by opening a criminal investigation of Sunoco."

Laura Benshoff of WHYY contributed reporting.