Sep 16, 2015 4 min read

On the same day in Washington County Court that Sunoco Pipeline LP filed a declaration to take property for its construction and transmission project, another couple challenged the state Public Utility Commission’s right to give a green light to the Mariner East 2 pipeline.

Sunoco has its eyes on land owned by Elaine H. Smith of 313 Short Cut Road, Avella, in Independence Township. It wants a permanent easement of 3.19 acres, temporary work space easement of 1.59 acres, and three additional temporary work areas totaling less than a fifth of an acre. She purchased the property in February 2005.

In court documents, an attorney for Sunoco Pipeline wrote that the firm has been unable to reach an agreement with Smith to acquire property for its pipeline project so it has resorted to eminent domain. The energy giant is willing to post a $10,000 bond.

Filing a complaint in equity against Sunoco Pipeline LP were David Alan and Esther L. McPeak of 3075 Henderson Road, Washington, who purchased their property in 1995.

Sunoco on Aug. 17 filed a petition to condemn property that the McPeaks own for the Mariner East service, citing a ruling by the PUC that the line is a public utility. The energy company seeks a permanent easement of 2.43 acres and temporary work space of 1.46 acres, plus additional temporary work space of just less than half an acre.

Michael F. Faherty of Hershey, Dauphin County, the attorney for the McPeaks, noted in court documents that Sunoco Pipeline in December 2012 applied for and obtained an order from the Federal Energy Regulatory Commission that required authority to proceed in construction of a pipeline to transport natural gas liquids from Ohio and West Virginia across Pennsylvania and into Delaware.

Faherty contends FERC approved Sunoco’s proposed pipeline rate design and tariff structure, but it did not provide a certification of public convenience and necessity which is required under federal law to exercise eminent domain.

“The Natural Gas Act provided eminent domain power for the transportation of natural gas, not natural gas liquids,” Faherty wrote in his complaint, citing a 2013 case which says only FERC has jurisdiction over interstate transportation of natural gas liquids, such as ethane.

The Mariner East 2 pipeline would have as its destination Sunoco’s refinery in Marcus Hook, Delaware County, but it is an interstate pipeline under FERC jurisdiction, Faherty maintains. He asked a Washington County judge to dismiss Sunoco Pipeline’s eminent domain petition and condemnation efforts, and award him attorney’s fees and costs.

The McPeaks noted other cases in Washington County court raising similar questions of law and fact, including landowners Rodney Lee and Robin Louise Rohrer of 108 Poplar Road, Avella; John Paul Craig, Frank Stewart Craig and Timothy David Craig of 638 Country Road, Avella; Harry Joseph and Patricia Marie Yevins of 136 Fox Road, Avella; and Edward J. Thomas III and Bonnie W. Thomas of Dairy Road, Mt. Pleasant Township.

Faherty asked the court to deny and dismiss Sunoco Pipeline’s verified petition for approval and order related to its filing of a bond.

In the Elaine H. Smith case, Sunoco attorney Stephanie Carfley noted the company in June 2014 filed an application to approve its service territory into Washington County, including 15 miles of pipeline from Houston Borough “to a point near the Pennsylvania-Ohio boundary.”

Carfley goes on to state that “ethane, while not expressly identified, also fits within the definition of petroleum gas” and that natural gas liquids are encompassed under terms of petroleum and petroleum product.

The company also contends that the United States Energy Information Administration’s definition of natural gas liquids includes ethane and propane, which, in turn, is included in the definition of petroleum and other liquids.

“We presumptively conclude that Sunoco’s existing certification encompasses the movement of ethane and propane,” Carfley wrote.

Sunoco has asserted since 2002 that it has been regulated by the state Public Utility Commission as a public utility, a status it said the PUC reaffirmed both last year and this year.

In 2012, Sunoco announced the Mariner East pipeline project for “wet” gas products such as propane, ethane and butane, designed to relieve the oversupply of natural gas liquids in the Marcellus and Utica Shale basins and to alleviate supply-side shortages of propane and related products in parts of Pennsylvania and the Northeast.

In July, visiting Senior Judge William R. Nalitz stopped Sunoco’s efforts to condemn the property of Martha J. and Cary Dwayne Cowden, Paradise Hills LLC and Kenneth Lee and Ann Marie Taylor. A hearing for that matter was set for Oct. 14.