IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sunoco Pipeline, L.P., : CASES CONSOLIDATED

Petitioner :

:

v. : Nos. 1415-1419 C.D. 2021

: No. 1421 C.D. 2021

Public Utility Commission, : Argued: December 15, 2022

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE MARY HANNAH LEAVITT, Senior Judge

OPINION

BY SENIOR JUDGE LEAVITT FILED: May 5, 2023

Sunoco Pipeline, L.P. (Sunoco) petitions for this Court’s review of an 

adjudication1 of the Pennsylvania Public Utility Commission (Commission) that 

imposed a civil penalty in the amount of $2,000 for violations of the Pennsylvania 

Public Utility Code2and federal regulations applicable to gas pipelines.3 Sunoco 

contends that the Commission erred and abused its discretion. First, the federal 

regulations on pipeline construction were not an issue raised in any of the formal 

complaints adjudicated by the Commission. Second, Sunoco cannot be sanctioned 

or ordered to revise its public awareness program unless or until the Commission 

promulgates a regulation that authorizes the ordered revisions. The Commission has

filed a motion to dismiss Sunoco’s appeal of its adjudication related to the 

construction of Sunoco’s pipelines as moot because those pipelines are no longer 

1 This matter comes before this Court on six separate petitions for review filed by Sunoco in 

response to the Pennsylvania Public Utility Commission’s (Commission) opinion and order 

entered at consolidated dockets Nos. C-2018-3006116, P-2018-3006117, C-2018-3003605, C2018-3005025, C-2018-3006898 and C-2018-3006900. By order of February 25, 2022, this Court 

consolidated the cases for review.

2

66 Pa. C.S. §§101-3316.

3 The federal Pipeline and Hazardous Materials Safety Administration, or PHMSA, promulgated 

pipeline safety regulations found in 49 C.F.R Parts 191-193, 195 and 199, which the Commission 

adopted in Section 59.33(b) of its regulations, 52 Pa. Code §59.33(b). 
2

transporting highly volatile liquids (HVLs). For the reasons to follow, we deny the 

Commission’s motion to dismiss, and we reverse in part and affirm in part the 

Commission’s remediation and civil penalty order to Sunoco. 

Background

Since 2014, as authorized by its certificates of public convenience, 

Sunoco has transported HVLs, including butane, ethane and propane or a 

combination thereof, between Delmont, Westmoreland County, and Twin Oaks, 

Delaware County. Sunoco’s Mariner East pipeline system consists of three 

pipelines. The Mariner East 1 (ME1) is an 8-inch diameter pipeline built in the 

1930s that has been repurposed to transport HVLs. The Mariner East 2 (ME2) is a 

newly constructed 20-inch diameter pipeline that, at certain points, uses a 12-inch 

“workaround pipeline” that was also built in the 1930s. The Mariner East 2X 

(ME2X) is a new 16-inch diameter pipeline under construction. Administrative Law 

Judge Initial Decision at 21-22, Findings of Fact (F.F.) Nos. 45-48.

Between July 2018 and January 2019, several formal complaints were 

filed to challenge Sunoco’s Mariner East pipelines as unsafe and not providing a 

reasonable utility service. The formal complaints were filed by Meghan Flynn, 

Rosemary Fuller, Michael Walsh, Nancy Harkins, Gerald McMullen, Caroline 

Hughes, and Melissa Haines (Flynn Complainants); the Andover Homeowners’ 

Association, Inc. (Andover); Melissa DiBernardino; Rebecca Britton; and Laura 

Obenski (collectively, Complainants) and Aligned Intervenors.

4 The formal 

complaints sought to stop the operation of the ME1 and ME2 pipelines and 

construction of the ME2X pipelines, including the workaround pipelines used for 

4 The Aligned Intervenors include Downingtown Area School District, Rose Tree Media School 

District, Twin Valley School District, East Goshen Township, West Whiteland Township, 

Uwchlan Township, Middletown Township, Delaware County, West Chester Area School District, 

Thornbury Township, Chester County, Edgmont Township, Clean Air Council, and Senator 

Thomas Killion. Chester County and Clean Air Council have filed briefs in support of the 

Commission.
3

HVLs. In the alternative, the complaints sought to have Sunoco ordered to take 

certain measures to protect public safety, including an enhancement to its public 

awareness program and integrity management plan.

More specifically, the Flynn complaint alleged that Sunoco’s ME1 and 

workaround pipelines and valve stations have been unlawfully sited in densely 

populated areas of Chester and Delaware Counties. A large HVL leak at any location 

along the ME1 or a workaround pipeline creates the risk of “hundreds of fatalities.”

Flynn Second Amended Complaint ¶30; Reproduced Record at 152a (R.R. __). The 

complaint also alleged that Sunoco failed to establish an adequate emergency 

planning and public awareness program, as required by Section 1501 of the Public 

Utility Code, 66 Pa. C.S. §1501; the Commission’s regulation at 52 Pa. Code §59.33;

and the federal regulation at 49 C.F.R. §195.440 (governing public awareness). The 

complaint further alleged that Sunoco did not meet the federal minimum safety 

standards in light of a 2017 leak in Morgantown, Pennsylvania, and a 2018 rupture 

in Beaver County, Pennsylvania. Due to these safety problems, the complaint 

requested the Commission to order an independent party to do a “remaining life 

study” on Sunoco’s ME1 and workaround pipelines in Chester and Delaware 

Counties. Flynn Second Amended Complaint at 36; R.R. 179a.

The DiBernardino complaint averred, inter alia, that Sunoco installed 

its pipelines in unstable soil; with coating flaws; and too close to other HVL 

pipelines, which was “too dangerous to be permitted.” DiBernardino Complaint 

¶14; R.R. 264a. The complaint alleged that Sunoco violated federal safety 

regulations by repurposing the pipelines built in the 1930s that “ha[ve] a long history 

of leaks,” including a 2018 leak in Delaware County. DiBernardino Complaint ¶16; 

R.R. 264a. The complaint questioned the integrity of the “1930s pipelines” and 

requested the Commission to require Sunoco to establish “a credible and adequate 

emergency/evacuation plan[.]” DiBernardino Complaint at 15; R.R. 270a. The 
4

complaint challenged Sunoco’s existing public awareness program under 49 C.F.R. 

§195.440 as inadequate because it did not explain how a gas leak would be detected 

or be communicated to the public. Further, school districts and municipalities have 

received “inadequate responses, or none at all” to their requests for information 

needed for their emergency response planning. DiBernardino Complaint ¶23; R.R. 

266a. The complaint requested the Commission to order Sunoco to suspend all 

horizontal directional drillings for installation of the ME2 and ME2X pipelines until 

“the risk to the public” is assessed and the “necessary geo-physical tests and 

analyses” are performed. DiBernardino Complaint at 15; R.R. 270a.

The Britton complaint asserted that because Sunoco’s public awareness 

program accounted only for those living within the 1000-foot impact radius, it was

insufficient. The Mariner East pipelines run through high consequence areas with

private dwellings, industrial buildings, and places of public assembly, in violation 

of 49 C.F.R. §195.210(a). The complaint alleged that a valve station in Upper 

Uwchlan Township presents an unreasonable risk to school students and staff across 

the street. Britton Complaint ¶32; R.R. 370a-71a. The complaint asserted that 

Sunoco’s public awareness program violated 49 C.F.R. §195.440 because it did not 

provide sufficient information. Britton Complaint ¶¶11-14; R.R. 364a-65a. It also 

raised concerns about the impact of Sunoco’s horizontal drilling upon public 

drinking water. The Britton complaint requested the Commission to find that 

Sunoco’s public awareness program, emergency alert system, and evacuation 

procedures did not constitute safe and reasonable services, as required under 66 Pa. 

C.S. §1501. Britton Complaint at 22-24; R.R. 376a-78a. 

The Obenski complaint also alleged that Sunoco’s public awareness 

program violated 49 C.F.R. §195.440 because it was not sufficiently informative on 

leak detection and evacuation procedures. Obenski Complaint ¶1; R.R. 635a-37a. 

School districts were unable to maintain “updated, actionable, and reliable 
5

emergency preparedness plans” due to “lack of cooperation from Sunoco.” Obenski 

Complaint ¶3; R.R. 638a. The complaint requested, inter alia, that the Commission 

find that Sunoco’s public awareness program “has resulted in significant gaps in the 

ability of” local government to “appropriately plan for the hazards introduced by the 

Mariner East Project[.]” Obenski Complaint at 8-9; R.R. 640a-41a.

Finally, Andover’s complaint asserted that Sunoco’s public awareness 

program violated 49 C.F.R. §195.440 because it had left the association’s members

“without either a credible notification system or emergency plan.” Andover 

Complaint ¶98; R.R. 749a. This was unreasonable because the ME1 leaked three 

times in 2016 and 2017, and the 12-inch workaround pipeline has leaked at least four 

times in Chester and Delaware Counties since 1987. Andover Complaint ¶77; R.R. 

745a. Andover asserted that Sunoco’s emergency evacuation plan, i.e., “immediate 

on-foot self-evacuation in the correct upwind or uphill direction,” was not workable, 

particularly for evacuations at night or during inclement weather. Andover 

Complaint ¶93; R.R. 748a. Andover alleged that it had made numerous requests of 

Sunoco “for a credible notification system and evacuation guidance” but received

neither. Andover Complaint ¶81; R.R. 746a. Andover requested the Commission 

to order Mariner East operations limited or stopped until Sunoco provides a 

“comprehensive risk assessment and credible notification and evacuation plan.” 

Andover Complaint at 23; R.R. 751a.

The complaints were assigned to an Administrative Law Judge (ALJ)

for disposition. By order of June 6, 2019, the ALJ consolidated the proceedings on

the formal complaints. The ALJ’s order identified “six central issues” that follow:

(1) the safety and integrity of ME1, ME2, ME2X, and the 12- 

inch pipeline;

(2) the safety of the location of the pipelines and related 

equipment (i.e. valve stations);

(3) the adequacy of Sunoco, L.P.’s public awareness program;
6

(4) the adequacy of Sunoco, L.P.’s emergency response 

procedures and training;

(5) Sunoco, L.P.’s integrity management protocols; and

(6) the safety of the construction of ME2 and ME2X.

ALJ Order, 6/6/2019, at 4; R.R. 845a.

The ALJ conducted in-person hearings in 2019, at which members of 

the public appeared. Sunoco, Complainants and Aligned Intervenors all filed written 

direct and rebuttal testimony between January and August of 2020. The ALJ then 

conducted evidentiary hearings from September 29, 2020, to October 9, 2020, and 

on October 13-14, 2020. All parties filed post-hearing briefs. 

On April 12, 2021, the ALJ issued an Initial Decision denying 

Complainants’ request that Sunoco cease construction and operation of the Mariner 

East pipelines. The ALJ reasoned that the Commission lacked jurisdiction over 

pipeline siting; regardless, the location of the Mariner East pipelines and the valve 

stations complied with both state and federal law. The ALJ also concluded that 

Complainants and Aligned Intervenors failed to prove that Sunoco violated the 

integrity management5 provision in 49 C.F.R. §195.452 or the cathodic protection 

provision in 49 C.F.R. §195.571. The ALJ found that Sunoco followed its integrity 

management plan, which treats all segments of the Mariner East pipelines in Chester 

and Delaware Counties as if they are located in a high consequence area. ALJ Initial 

Decision at 115. Because the integrity management program requires on-going

testing, maintenance, and repair of the pipelines to keep them in compliance with 

regulatory requirements, the ALJ denied Complainants’ request that Sunoco hire an 

5

“Integrity management” refers to a process in which pipeline operators “devote additional 

resources to preventing and mitigating hazards to pipeline safety within [high consequence areas].” 

Commission Adjudication at 24 n.8. As the Commission explained, the federal pipeline safety 

regulations use the concept of “high consequence areas,” or HCA, to “identify specific locales and 

areas where a failure could have the most significant adverse consequences.” Id. The federal 

regulations require “the use of an in-line inspection device or comparable technology to ensure 

hazardous liquid pipeline integrity within HCAs.” Id.
7

independent party to conduct a “remaining life study” on the ME1 and the 

workaround pipelines. Id. at 112. 

The ALJ determined, however, that Sunoco had violated Section 1501 

of the Public Utility Code, 66 Pa. C.S. §1501, in two ways. First, the ME1 and the 

workaround pipelines did not satisfy the depth of cover and spacing regulations set

forth in 49 C.F.R. §§195.210(b), 195.248, and 195.250. Second, Sunoco’s public 

awareness program did not satisfy the requirements of 49 C.F.R. §195.440. 

Depth of Cover and Distance of Pipelines

With respect to the violation of 49 C.F.R. §§195.210(b), 195.248, and 

195.250, the ALJ relied on the presentation of complainant Gerald McMullen that

the ME1 is located within 50 feet of several homes, including his, as well as the 

Chester County Library. He testified that the ME1 is “shallow,” as are the “new 

pipelines that are proposed to go in.” Notes of Testimony (N.T.), 10/23/2019, at 

979; R.R. 929a. McMullen presented a photograph of an 8-inch ME1 pipeline and 

another pipeline that were exposed in a dry creek bed near Whiteland West 

Apartments. R.R. 950a. Another one of McMullen’s photographs showed that an

underground pipeline transected a ball field. R.R. 952a. 

As to the distance between the pipelines, McMullen presented an

exhibit he created indicating “the distances between the two existing pipelines and 

the two proposed pipelines” between his home and the Chester County Library. N.T. 

951; R.R. 901a. The exhibit showed the ME1 and the 12-inch workaround pipelines 

placed 25 feet apart, and the ME1, ME2X, ME2, and the workaround pipelines 

placed 8 to 9 feet apart from each other. Id.; see also R.R. 946a. McMullen also 

presented a photograph taken from his property showing Sunoco pipeline markers.

He testified, in relevant part:

Following the markers straight down, that is [ME]1. The 

markers to the right of that are the potential path of [ME]2X. 
8

Right on the other side of that wooden fence is [ME]2, and 

closest to the library is the 12-inch workaround line. 

N.T. 952; R.R. 902a. McMullen expressed concern that “there are four pipes in such 

a small space” because, should there be a leak or an accident, he and other residents 

would have difficulty in following Sunoco’s recommendation to evacuate from the 

scene, “upwind, uphill,” on foot. N.T. 951-52; R.R. 901a-02a. In addition, 

McMullen presented photographs of a parking lot in Exton, Chester County, 

showing markers on the ground for two pipelines buried underneath, one of them 

being ME1, but he did not specify the distance between the two pipelines. R.R. 

951a.

Based on McMullen’s testimony about the shallow pipes and 

photographs, the ALJ found that the ME1 pipeline is not always covered with 48

inches of ground cover when located within 50 feet of dwellings, as required under 

49 C.F.R. §195.210(b).6 ALJ Initial Decision at 93. Nevertheless, the ALJ 

acknowledged that neither complainants nor Sunoco “offered any measurements 

regarding depth of cover of a pipe within 50 feet of the library and Mr. McMullen’s 

house.” Id. The ALJ explained, however, that her finding was consistent with the

Pennsylvania Department of Environmental Protection’s September 11, 2019, order, 

6

It states:

(b) No pipeline may be located within 50 feet (15 meters) of any private dwelling, 

or any industrial building or place of public assembly in which persons work, 

congregate, or assemble, unless it is provided with at least 12 inches (305 

millimeters) of cover in addition to that prescribed in §195.248.

49 C.F.R. §195.210(b). Section 195.248(a) provides:

(a) Unless specifically exempted in this subpart, all pipe must be buried so that it is 

below the level of cultivation. Except as provided in paragraph (b) of this section, 

the pipe must be installed so that the cover between the top of the pipe and the 

ground level, road bed, river bottom, or underwater natural bottom (as determined 

by recognized and generally accepted practices), as applicable, complies with the 

following table [requiring a maximum of 36 inches of coverage in industrial, 

commercial, and residential areas].

49 C.F.R. §195.248(a).
9

which directed Sunoco to cover exposed pipelines at 43 locations across the state,

one of which involved the transport of HVLs. Id. at 97. 

The ALJ found that Sunoco violated 49 C.F.R. §195.250, which

requires a 12-inch separation between pipelines transporting HVLs and underground 

structures.7 Despite McMullen’s testimony and his diagram showing that the ME1, 

ME2X, ME2, and the workaround pipelines are about 8 to 9 feet apart from each 

other, the ALJ found that the pipelines under the parking lot and between 

McMullen’s home and the Chester County Library were placed approximately 8

inches apart.

In making these findings, the ALJ observed that Matt Gordon, senior 

director of Sunoco operations in Chester and Delaware Counties, did not refute 

McMullen’s testimony. With regard to McMullen’s photographs of exposed 

pipelines in the streambed next to Whiteland West Apartments, Gordon testified that 

those pipelines had been abandoned and were no longer in use. He could not recall 

the distance between those two exposed pipelines. Gordon testified there is 48 

inches of cover over ME2, but he did not speak to the depth of cover over ME1 or 

the 12-inch workaround pipeline near McMullen’s home, which McMullen 

described as “shallow.” ALJ Initial Decision at 93. The ALJ took judicial notice of 

Gordon’s testimony in a prior proceeding, Dinniman v. Sunoco Pipeline, L.P., P2018-3001453 and C-2018-3001451 (Dinniman Proceeding),8

that “10 feet 

7 Section 195.250 provides:

Any pipe installed underground must have at least 12 inches (305 millimeters) of 

clearance between the outside of the pipe and the extremity of any other 

underground structure, except that for drainage tile the minimum clearance may be 

less than 12 inches (305 millimeters) but not less than 2 inches (51 millimeters). 

However, where 12 inches (305 millimeters) of clearance is impracticable, the 

clearance may be reduced if adequate provisions are made for corrosion control.

49 C.F.R. §195.250.

8

In that case, state senator Andrew E. Dinniman filed a formal complaint with the Commission 

seeking to enjoin Sunoco’s operation of ME1 and the construction of ME2 and ME2X in West 
10

separation was a standard distance buffer between the ME1 and ME2 and ME2X 

pipelines.” ALJ Initial Decision at 94. 

The ALJ concluded that Sunoco did not refute Complainants’ evidence 

that the ME1 was not buried at the correct depth and was too close to the other pipes. 

Public Awareness Program

With regard to Sunoco’s public awareness program, the ALJ made 

numerous and detailed findings. Beginning in 2014, Sunoco has done public 

awareness mailings for the Mariner East pipelines: one to the affected public; one 

to excavators and public officials; and one to emergency responders. The public 

pamphlet and emergency responder pamphlet state that natural gas liquids (NGLs)

are

flammable and can ignite when [they] come[] into contact with 

an ignition source. Exposure can cause moderate irritation 

including headaches and dizziness. NGL may contain hydrogen 

sulfide H2S.

ALJ Initial Decision at 134 (citing Sunoco Exhibits GG-1 and GG-2). However, the 

pamphlets do not mention “death, burns, serious injuries, frostbite or asphyxiation” 

as possible consequences of a pipeline rupture or ignition. ALJ Initial Decision at 

49, F.F. No. 244. In the event of a leak, the pamphlets advise one to leave the area 

on foot to a safe distance; warn others; turn off electrical equipment; and call 911. 

Each individual must determine a “safe distance” on a case-by-case basis. Id. at 51,

F.F. No. 261. The pamphlets do not address the evacuation of individuals with 

physical or mental limitations.

Whiteland Township that had allegedly caused sinkholes. The Commission affirmed the ALJ’s 

emergency interim order directing Sunoco to cease construction of ME2 and ME2X. This Court 

reversed the Commission’s adjudication in Sunoco Pipeline L.P. v. Dinniman, 217 A.3d 1283 (Pa. 

Cmwlth. 2019), and remanded the matter to the Commission with instructions to dissolve the 

interim emergency injunction and dismiss Dinniman’s complaint for lack of standing. 
11

Since 2014, Sunoco has developed and maintained websites with

information about the Mariner East pipelines, including one dedicated specifically 

to pipeline safety. ALJ Initial Decision at 53, F.F. No. 270. Sunoco has also

disseminated public awareness and safety information about the Mariner East 

pipelines through social media. Id., F.F. No. 271. Since 2016, Sunoco has used 

billboards, radio advertising, and television advertising to provide information about 

the Mariner East pipelines. Id., F.F. No. 272. Sunoco has held open houses in 

Chester and Delaware Counties to provide information about the construction of the 

Mariner East pipelines. Sunoco has engaged a consultant that specializes in 

community planning and emergency preparedness, and Sunoco has met with school 

districts in Delaware and Chester Counties. Id., F.F. No. 276. 

In 2019, Sunoco’s public awareness program was audited as part of the 

Public Awareness Program Effectiveness Research Survey (“PAPERS”), a program 

developed by the American Petroleum Institute (API). ALJ Initial Decision at 54, 

F.F. No. 277. The audit concluded that Sunoco’s public awareness program “was 

effective in achieving program objectives and was comparable to the other pipeline 

operators’ programs.” Id., F.F. No. 278.

Additionally, Sunoco meets with emergency responders in Delaware 

and Chester Counties every other month to provide training, tours, and exercises. 

ALJ Initial Decision at 59-63, F.F. Nos. 314-45. Gregory Noll, Sunoco’s expert 

witness in emergency planning and emergency response training, conducted Mariner 

Emergency Responder Outreach (MERO) trainings in Delaware and Chester 

Counties in 2017 and 2020. Sunoco participates in annual Coordinated Response 

Exercises (CoRE) for emergency responders in Delaware and Chester Counties. 

Sunoco participates in bi-weekly meetings with townships across Delaware and 

Chester Counties and monthly meetings with Chester County Association of 

Township Officials to provide project updates. The ALJ found that the level of
12

training and funding for equipment provided by Sunoco in Delaware and Chester 

Counties exceeds that of any other NGL pipeline operator in these counties. ALJ 

Initial Decision at 59, F.F. No. 320. 

Sunoco’s MERO training provides that the decision to evacuate or 

shelter in place should be made by the emergency responder on a case-by-case basis. 

Delaware County has adopted an emergency response plan that includes factors to 

be considered in making that decision. Id. at 55, F.F. No. 290. Accordingly, Sunoco 

does not provide notice of a pipeline release directly to schools and municipalities.

The ALJ found that Sunoco must directly notify schools and 

municipalities in the event of a rupture or release because they are also “first 

responders.” Id. at 57, F.F. Nos. 302-03. Municipalities and school districts are 

required to create their emergency response plans under the Emergency 

Management Services Code, 35 Pa. C.S. §§7101-79A33, and they need information 

from Sunoco to develop their plans. ALJ Initial Decision at 60, F.F. No. 323. The

information Sunoco has provided to municipalities and school districts in Delaware 

and Chester Counties includes: 

(i) the location of the pipelines; (ii) the location of the valve 

stations; (iii) proximity to schools; (iv) the products in pipelines 

and their physical properties; (v) the hazards of those products; 

(vi) a rule of thumb for a safe distance in the event of a significant 

release; (vii) the direction of flow of product in the pipelines; 

(viii) that in the event of a catastrophic release the product 

between the corresponding valve sites will be released; (ix) 

plume modeling; (x) [Sunoco’s] integrity management, security 

and PHMSA compliance programs; and (xi) [Sunoco’s] remote 

monitoring center for leak detection. 

ALJ Initial Decision at 60, F.F. No. 324 (quotations omitted).

In sum, the ALJ found that Sunoco’s public awareness program 

satisfied “many requirements” of the federal pipeline safety regulations, including 

the use of a one-call notification system, identification of a pipeline release, steps to 
13

take in the event of a release, procedures to report a release, and limitations on cell 

phone use during a release. ALJ Initial Decision at 54, F.F. No. 281. Accordingly, 

the ALJ denied Complainants’ requests for mass warning systems, addition of 

odorants to the NGLs in the pipelines, and notice of evacuation procedures, as well 

as their requests to have Sunoco revise its public mailers to address “what a safe 

distance is before using a cellular phone, wind direction and other means of 

transporting persons other than walking away and upwind from a release.” ALJ 

Initial Decision at 140, 161, 167-69. The ALJ concluded that these requests should 

be addressed in the Commission’s on-going rulemaking proceeding that was 

considering amendments to the public awareness regulations.

On the other hand, the ALJ found inadequacies in Sunoco’s public 

awareness program. William H. Turner, Deputy Director for Chester County’s

Department of Emergency Services, testified that Sunoco’s CoRE meetings and 

MERO trainings were insufficient for planning purposes. Turner testified that trying 

to get information from Sunoco for the County’s emergency response plan was like 

hitting a “brick wall.” ALJ Initial Decision at 147. Should a leak occur in the 

pipeline valve located near the Downingtown Area School District, Turner estimated 

that it would take 10 minutes for the pipeline operator to arrive on the scene with a 

gas meter. Turner believed that Sunoco should enhance its public outreach and 

education programs by providing municipalities and school districts information 

needed to develop their emergency response plans. Id. at 148-49.

In these findings, the ALJ credited the testimony of Timothy Hubbard, 

the fire marshal and emergency management officer in Charlestown Township, 

Chester County. Hubbard explained it was difficult to have “consistent contact” 

with Sunoco on information such as “what product is flowing at any given time, 

when it’s flowing, when products are changing and the nature of the products.” ALJ 

Initial Decision at 148. Hubbard testified there was a lack of “real, true and credible 
14

assistance” from Sunoco, such as “expert advice from the perspective of a pipeline 

operator or resources in the event that an emergency were to occur.” Id. Hubbard 

does not know, for example, how much product would be released in a leak before 

the shut-off valves can be activated. 

The ALJ found emergency planning agencies, first responders, 

residents, school districts, and municipalities were “confused and concerned” about 

how to protect their communities in the event of a gas leak. ALJ Initial Decision at 

149. School officials did not know whether cellphones can be safely used in an 

evacuation that could involve thousands of children. Witnesses from multiple school 

districts expressed confusion over the first steps to take in a pipeline emergency. 

West Chester and Twin Valley School Districts planned to have students shelter in 

place until receiving further notice, but this contravened Sunoco’s recommendation 

to evacuate from the scene of a pipeline emergency, on foot, immediately. Hubbard, 

who also serves as the chief security officer of the Downingtown Area School 

District, questioned Sunoco’s recommendation to evacuate on foot and upwind. The

Downingtown Area School District has a student population that ranges in age from 

kindergarten through twelfth grade, and it includes special needs children. Deciding

wind direction is a “hit-or-miss” situation, particularly since winds fluctuate. Id. at 

154. If a leak occurred near the playground, it could asphyxiate children. Should a 

car drive through a leak, it could ignite an explosion. Emile Lonardi, the 

superintendent of Downingtown Area School District testified that she “has been 

given conflicting information” and did not have a “credible or practical or realistic 

plan in place to keep the students safe in the event of leak” from the Mariner East 

pipelines. Id. at 153. 

The ALJ found a “need for emergency response measures by [Sunoco] 

that will maximize the timeliness and effectiveness of the school districts’ response 

at each of their facilities.” ALJ Initial Decision at 156. The ALJ found Sunoco’s 
15

existing CoRE exercises and MERO training on accidents to be inadequate. 

Accordingly, the ALJ concluded Sunoco’s failure to engage with the local 

emergency personnel upon their request constituted “unreasonable service,” in 

violation of 66 Pa. C.S. §1501 and 52 Pa. Code §59.33. ALJ Initial Decision at 151. 

Sunoco’s failure to provide sufficient guidance to schools located within a few 

hundred feet of the Mariner East pipelines specifically violated 49 C.F.R. 

§195.440(d)(4), which requires Sunoco to reach out to “appropriate government 

organizations” with “steps that should be taken” in the event of an emergency. ALJ 

Initial Decision at 151. The ALJ was persuaded that school districts should receive 

the same information provided to emergency responders in light of their

responsibility to plan for emergencies.

The ALJ also found deficiencies in Sunoco’s required communication 

with the public. The federal regulation at 49 C.F.R. §195.440(a) requires that a

pipeline operator develop and implement a written continuing public education 

program that follows the guidance provided by API Recommended Practice (RP)

1162. In turn, Section 4.2 of API RP 1162 provides that “operators should provide 

a very broad overview of potential hazards, their potential consequences and the 

measures undertaken by the operator to prevent or mitigate the risks from the 

pipelines.” R.R 1146a (emphasis added).9 

9 API RECOMMENDED PRACTICE 1162 (First Edition, December 2003), Public Awareness 

Programs for Pipeline Operators, at 19. Section 4.2 of API RP 1162 states:

Hazard Awareness and Prevention Measures

Operators should provide a very broad overview of potential hazards, their potential 

consequences and the measures undertaken by the operator to prevent or mitigate 

the risks from pipelines (including, at the operator’s discretion, an overview of the 

industry’s safety record). Additionally, operators should provide an overview of 

their preventative measures to help assure safety and prevent incidents. The scope 

of the hazard awareness and prevention message should be more detailed for the 

emergency responder audience than for other audiences, and should include how to 

obtain more specific information upon request from the operator.

R.R. 1146a. 
16

Based on these findings of fact and conclusions of law, the ALJ 

recommended the imposition of a civil penalty of $2,000 on Sunoco for “having 

violated regulations: 49 C.F.R. §195.440; 49 C.F.R. §195.210; [49 C.F.R. 

§]195.248; 66 Pa. C.S. §3301(c); 49 U.S.C.A. §60118(a); 52 Pa. Code §69.1201; 66 

Pa. C.S. §1501 and 52 Pa. Code §59.33.” ALJ Initial Decision at 197; Conclusion 

of Law No. 71. Of the $2,000 civil penalty, $1,000 was imposed for Sunoco’s 

“unreasonable service [] to not oblige [the school districts and municipalities’] 

request” for “more information and emergency responder training.” ALJ Initial 

Decision at 140. The remaining $1,000 penalty, accordingly, was for the violation 

of the pipeline depth of cover and distancing regulations. The ALJ also 

recommended injunctive-type relief to address these violations.

Commission Adjudication

Sunoco filed exceptions to the ALJ’s Initial Decision. It challenged the 

ALJ’s determination that it had violated the pipeline depth of cover and distance 

regulations in 49 C.F.R. §§195.210(b), 195.248, and 195.250, which were not an 

issue in the proceeding. In addition to violating Sunoco’s right to due process, the 

ALJ misinterpreted the cited federal regulations, which did not apply to the ME1 

and the workaround pipelines, and made findings of fact unsupported by substantial 

evidence. Sunoco objected to the ALJ’s order to revise its public awareness program

because it imposed a burden not required under Pennsylvania or federal law or 

imposed on any other pipeline operator.

By adjudication of November 18, 2021, the Commission denied 

Sunoco’s exceptions. The Commission adopted the ALJ’s proposed findings of fact, 

conclusions of law and recommended order as its own. The Commission imposed a 

civil penalty in the total amount of $2,000. 

With regard to Sunoco’s public awareness program, the Commission 

also ordered remediation measures. They included the following:
17

18. That Sunoco Pipeline, L.P. is directed to contact Chester 

County Commissioners, Delaware County Commissioners, and 

all municipalities’ supervisors therein within thirty (30) days of 

the date of Final entry of this Opinion and Order in this

consolidated proceeding to arrange for meeting(s) (either 

remotely or in-person or a combination thereof as mutually 

agreeable) to:

a) establish emergency contact list information for 

the operator’s controller and county liaison(s);

b) disclose to Middletown Township, Delaware 

County, and Chester County any damage or 

potential damage to their respective facilities or 

properties resulting from the operation of the 

pipelines;

c) assist with the establishment of emergency plans 

for first responders in the event of a leak, release, 

explosion, or other failure of the pipeline system 

and the communication of all information required 

under state and federal law to enable Middletown, 

Delaware County, and Chester County to prepare 

such emergency plans;

d) inform and educate Middletown and Delaware 

County officials and staff on proper and effective 

disaster prevention and disaster response, including

participation in “tabletop” activities and/or “boots 

on ground” exercises as referenced by Sunoco in its 

letter dated August 13, 2020 and admitted as exhibit 

SUNOCO-50 and as requested by Complainants 

and their aligned Intervenors;

e) develop standard notification templates for public

warning systems to be used during a pipeline 

emergency and develop emergency classification 

levels (i.e., a small leak release versus a rupture 

event) which are specifically designed to make the 

public aware of the situation;

f) provide detailed information regarding its

infrastructure;
18

g) assist in the development of an evacuation plan 

for use by municipalities with concept of how 

evacuation would occur;

h) create a public outreach and public education 

program;

i) introduce to the operator’s designated County

liaison(s) a tour of the area surrounding the pipeline 

facilities such that the liaison(s) may be made aware 

of the geology, terrain and location of schools, 

libraries, retirement and apartment housing as well 

as train tracks, roadways, recreational parks, 

housing developments such that the liaison may 

provide local emergency planning assistance to 

local emergency management partners that could 

consist of dedicated employee(s) and or funding to 

support additional employees;

j) notify not only the County but all municipalities 

in Delaware or Chester County of anticipated, 

scheduled or commenced work done in those 

counties;

k) notify County officials, in advance, of any 

pipeline activity, such as simulations, testing, 

routine maintenance, repairs, etc.;

l) subject to a nondisclosure agreement, share with

Chester County’s Department of Emergency 

Services maps of all transmission lines listing 

material moved, pipeline diameter, mainline valve 

locations and maximum operating pressures 

(MOP), and maximum allowable operating pressure

(MAOP) and information about the location of any 

anomalies that merit pressure reduction in the 

pipeline and the presence of “immediate,” “60-day” 

or “180-day” repair conditions for liquid pipelines 

or “immediate” or “one- year” repair conditions for 

gas pipelines; and

m) establish times and dates for follow-up meetings 

and periodic meeting schedules as mutually 

agreeable between municipalities, counties and 

Sunoco Pipeline, L.P.
19

Commission Adjudication at 113-15.

As to depth of cover over, and distance between, Sunoco’s pipelines, 

the Commission ordered remediation measures that follow:

24. That Sunoco Pipeline, L.P. is directed to conduct a depth of 

cover and distance between other underground 

pipelines/structures survey regarding Mariner East 1 and the 12-

inch workaround pipelines as long as they are purposed for 

carrying highly volatile liquids a/k/a natural gas liquids.

25. That Sunoco Pipeline, L.P. is directed to bury its Mariner 

East 1 and 12-inch pipelines as long as these pipelines are 

transporting Highly Volatile Liquids such that they are at least 

twelve inches apart from other underground pipes or structures

unless the operator can show it is providing adequate corrosion 

control in these areas where the pipes are less than twelve inches 

apart.

26. That within one hundred twenty (120) days of the date of 

Final entry of this Opinion and Order, Sunoco Pipeline, L.P. shall 

file a report with the Commission certifying whether Mariner 

East 1 and the 12-inch workaround pipelines that are transporting 

highly volatile liquids within Chester and Delaware Counties are 

buried so that they are below the level of cultivation and so the 

cover between top of pipe and ground level, road bed, river 

bottom or underwater natural bottom is in compliance with

minimum regulatory requirements and the distance between 

pipeline exteriors and the exteriors of other underground 

pipelines/utility structures are at least twelve inches apart unless 

adequate corrosive control action can be shown, and that a copy 

of the report be served upon the Commission’s Bureau of 

Technical Utility Services and the Bureau of Investigation and 

Enforcement. 

27. That the report as described in Ordering Paragraph No. 26 

shall contain a corrective action plan regarding any areas of 

operating pipelines (including Mariner East 1, 8-inch pipeline, 

and the 12-inch workaround pipelines) carrying highly volatile 

liquids in Delaware and Chester Counties in need of remediation 

where there is lack of required cover and/or proper distance 

between other structures/pipelines in order to bring these 

pipelines up to federal minimum codified requirements.
20

28. That the report as described in Ordering Paragraph No. 26 

shall be filed annually for a period of three (3) years. 

Commission Adjudication at 116-17.

Sunoco appealed to this Court. On November 18, 2022, the 

Commission filed a motion to dismiss Sunoco’s petition for review, in part, on 

grounds of mootness.

Appeal

On appeal,10 Sunoco raises two issues for our review. First, Sunoco 

argues that the Commission erred in holding that it violated the federal regulations

on depth of cover and distance between pipelines. This issue was not raised in any 

of the formal complaints and, thus, Sunoco was deprived of notice and an 

opportunity to be heard. Alternatively, Sunoco argues that the Commission 

misconstrued and misapplied the federal regulations because they govern the 

construction of new pipelines built after 1981, when the federal regulations on depth 

of cover and pipeline distance were promulgated. The ME1 and the workaround 

pipelines are exempt because they were constructed in the 1930s. Further, other 

federal regulations govern the operation and maintenance of existing gas pipelines. 

In any case, the ALJ’s findings of fact on depth of cover and spacing of the ME1 

and the workaround pipelines are not supported by substantial evidence. Second, 

10 On a petition to review an adjudication of the Commission, our standard of review is limited to 

determining whether substantial evidence supports the necessary findings of fact, whether the 

Commission erred as a matter of law, and whether constitutional rights were violated. Retail 

Energy Supply Association v. Pennsylvania Public Utility Commission, 185 A.3d 1206, 1220 (Pa. 

Cmwlth. 2018) (quotations omitted). We defer to the Commission’s interpretation of the Public 

Utility Code and its own regulations unless the Commission’s interpretations are clearly erroneous. 

Id. (quotations omitted). We may not substitute our judgment for that of the Commission “when 

substantial evidence supports the [Commission’s] decision on a matter within the [C]ommission’s 

expertise.” Id. (quotations omitted). “Judicial deference is even more necessary when the statutory 

scheme is technically complex.” Id. (quotations omitted). On issues of law, “our standard of 

review is de novo and our scope of review is plenary.” Id.
21

Sunoco argues that the Commission erred and abused its discretion in ordering 

Sunoco to revise its public awareness program in ways not required by existing state 

and federal regulations. Effectively, the Commission’s order to Sunoco constitutes 

the promulgation of a regulation that cannot be done in the course of an adjudication

but only in a rule-making proceeding. 

In its motion to dismiss, the Commission argues that Sunoco’s appeal 

of its adjudication with respect to the depth of cover and distance of the ME1 and 

12-inch workaround pipelines is moot because those pipelines are no longer 

transporting HVLs. On the merits, the Commission argues that it acted within its 

authority under the Public Utility Code and the applicable regulations to ensure that 

Sunoco provided adequate, safe, and reasonable service. Further, it argues that the 

Commission’s interpretation of the Public Utility Code and applicable regulations, 

including the federal regulations, is entitled to deference.11

Mootness

We begin with the Commission’s motion to dismiss Sunoco’s appeal 

for mootness. The Commission asserts that Sunoco’s appeal on the Commission’s 

adjudication regarding “depth of cover and pipeline distance applied directly and 

exclusively to Sunoco’s [ME1] and 12-inch workaround pipelines as long as these 

11 The Commission regulations at 52 Pa. Code §59.33, promulgated pursuant to 66 Pa. C.S. §1501, 

require that hazardous liquid utilities shall have minimum safety standards consistent with the 

pipeline safety laws at 49 U.S.C. §§60101-60503 and the regulations at 49 C.F.R. Parts §§191-

193, 195, and 199. The Commission regulations adopt federal safety standards for hazardous 

liquid facilities. These standards include what materials must be used for new hazardous liquid 

pipelines, and how those pipelines should be constructed, as well as corrosion control, maintenance 

and testing of existing hazardous liquid pipelines. The standards also address emergency 

preparedness and public awareness plans.
22

pipelines are transporting [HVLs]” is now moot. Commission Motion, ¶5 (emphasis 

in original). The ME1 and the 12-inch workaround pipelines are no longer 

transporting HVLs. Sunoco responds that because the adjudication ordered a civil 

penalty for violating the depth of cover and distance regulations, its appeal cannot 

be moot. If Sunoco succeeds in its appeal, it can recover its payment. Further, an 

adjudicated violation will be used to establish a penalty in a future enforcement 

action against Sunoco, should one occur. See 52 Pa. Code §69.1201(c)(6) (providing 

that frequent, recurrent violations by a public utility may result in a higher penalty). 

Generally, a case will be dismissed as moot if there exists no actual case 

or controversy. Fraternal Order of Police v. City of Philadelphia, 789 A.2d 858

(Pa. Cmwlth. 2002). The existence of a case or controversy requires

(1) a legal controversy that is real and not hypothetical, (2) a legal 

controversy that affects an individual in a concrete manner so as 

to provide the factual predicate for a reasoned adjudication, and 

(3) a legal controversy with sufficiently adverse parties so as to 

sharpen the issues for judicial resolution.

Mistich v. Pennsylvania Board of Probation and Parole, 863 A.2d 116, 119 (Pa. 

Cmwlth. 1994) (quoting Dow Chemical Company v. United States Environmental

Protection Agency, 605 F.2d 673, 678 (3rd Cir.1979)). A controversy must continue 

through all stages of judicial proceedings, trial and appellate, and the parties must 

continue to have a “personal stake in the outcome” of the lawsuit. Mistich, 863 A.2d 

at 119 (quoting Lewis v. Continental Bank Corporation, 494 U.S. 472, 477–78

(1990)). 

An exception to mootness will be found where (1) the conduct 

complained of is capable of repetition yet likely to evade judicial review; (2) the case 

involves issues of great public importance; or (3) one party will suffer a detriment 

in the absence of a court determination. Horsehead Resource Development

Company, Inc. v. Department of Environmental Protection, 780 A.2d 856, 858 (Pa.
23

Cmwlth. 2001). It is within the court’s discretion to decide “substantial questions, 

otherwise moot, which are capable of repetition unless settled.” Colonial Gardens

Nursing Homes, Inc. v. Bachman, 373 A.2d 748, 750 (Pa. 1977). 

Sunoco’s decision to discontinue using the ME1 and the 12-inch 

workaround pipelines for HVLs does not moot its challenge to the adjudicated 

violation of the depth of cover and distance regulations because Sunoco has paid a 

$1,000 civil penalty for that violation and would like it refunded. Additionally, 

nothing in the Commission’s order prevents Sunoco from resuming the 

transportation of HVLs in the ME1 and the 12-inch workaround pipelines at some 

point in the future.

Accordingly, we deny the Commission’s motion. We turn, then, to the 

merits of Sunoco’s issues on appeal.

Depth of Cover and Distance Pipeline Regulation

Sunoco argues that it was denied due process because the pipeline depth 

of cover and distance regulations found in 49 C.F.R. §§195.210, 195.248 or 195.250

were not cited in any of the formal complaints. The Flynn complaint originally cited 

the federal depth of cover regulation, but not the distance regulation. However, the 

Flynn Complainants withdrew that complaint and did not include that issue in their

amended complaint. None of the other formal complaints cited these federal 

regulations, and none of the Complainants or Aligned Intervenors raised these 

federal regulations in their post-hearing briefs. Sunoco argues that the ALJ erred in 

raising, sua sponte, the depth of cover and distance regulations for the first time in 

her Initial Decision.

The Commission responds that the Flynn complaint alleged a violation 

of 66 Pa. C.S. §1501, and the pipeline safety regulation at 52 Pa. Code §59.33. This

put Sunoco on notice that compliance with all state and federal pipeline safety 

regulations would be at issue, even without a specific citation to 49 C.F.R. 
24

§§195.210, 195.248 or 195.250. Further, the ALJ’s pre-hearing order stated that one 

of the issues to be addressed was “the safety and integrity of ME1, ME2, ME2X, 

and the 12-inch pipelines” and “the safety of the locations of the pipelines[.]” 

Commission Brief at 53 (quoting R.R. 844a-46a). 

It is beyond peradventure that an administrative hearing is limited to 

the legal questions raised by the parties. The hearing tribunal may not, sua sponte, 

augment the subject matter of a proceeding. As this Court has recently explained:

Sua sponte consideration of an issue deprives counsel of the 

opportunity to brief and argue the issues and the court of the 

benefit of counsel’s advocacy. Moreover, raising issues sua 

sponte after the record is closed and without notice to the parties 

constitutes a due process violation. 

Orange Stones Company v. Borough of Hamburg Zoning Hearing Board, 991 A.2d 

996, 999 (Pa. Cmwlth. 2010) (quotations omitted). 

On due process, this Court has directed that a utility must be “afforded 

a reasonable opportunity to know the nature of its opponents’ contentions so that it 

can prepare a suitably responsive answer.” Duquesne Light Company v. 

Pennsylvania Public Utility Commission, 507 A.2d 433, 437 (Pa. Cmwlth. 1986). 

See also Commonwealth v. Public Utility Commission, 331 A.2d 598, 600 (Pa. 

Cmwlth. 1975) (“anyone involved in a proceeding” is entitled to “notice of specific 

charges or complaints”). In Duquesne Light Company, the Commission ordered an 

electric utility to refund customers the cost of replacement service required by the 

utility’s shutdown of a nuclear plant. The utility challenged the Commission’s order

on grounds that it did not receive adequate notice that the reasonableness of its 

actions immediately preceding the shutdown order was a matter in issue. This Court 

agreed, holding that the Commission violated due process by deciding an issue for

which the utility did not receive notice. 
25

In Pocono Water Company v. Pennsylvania Public Utility Commission, 

630 A.2d 971 (Pa. Cmwlth. 1993), a formal complaint alleged inadequate service 

from a water utility. Sua sponte, the ALJ imposed a penalty upon the water company 

because it had not complied with a prior order of the Commission to build storage 

tanks. In its appeal, the utility asserted a violation of due process because there was 

no notice that a prior order was at issue. Reversing the Commission’s order, this 

Court explained as follows:

Due process in matters before the Commission requires that a 

party be afforded reasonable notice of the nature of the 

allegations against it so that the party can prepare a suitable 

defense. Duquesne Light Co. v. Pennsylvania Public Utility

Commission, 507 A.2d 433. Although the Commission may take 

notice of results it reached in other cases, the record must reflect 

that the parties had notice that the Commission would consider 

such evidence. City of Erie v. Pennsylvania Public Utility

Commission, [] 398 A.2d 1084 ([Pa. Cmwlth.] 1979). This Court 

has held that the Commission violated due process rights when it 

assessed liability by determining an issue which the utility had 

not been afforded a reasonable opportunity to address at an 

evidentiary hearing.

Pocono Water Company, 630 A.2d at 973. 

Here, the depth of cover regulation was expressly withdrawn from the

Flynn complaint, and the pipeline separation issue was never raised. Rather, the

formal complaints raised general safety concerns about the Mariner East pipeline

system. Ironically, the ALJ did not make a specific finding that the system was

unsafe. More to the point, a general allegation about “safety” did not put Sunoco on

notice that it should prepare to defend the spacing and depth of its pipelines, which

are very specific in their terms.

12

 Further, Complainants and their Aligned

12 By contrast, the formal complaints put Sunoco on notice that it should prepare to defend its 

public awareness program. See Flynn Complaint ¶¶115-122; R.R. 174a-75a (Sunoco failed to 

provide an adequate public awareness program under 49 C.F.R. §195.440); DiBernardino 

Complaint ¶¶22-32; R.R. 266a-68a (Sunoco failed to provide an adequate emergency planning and 
26

Intervenors made no argument in post-hearing briefs with respect to depth of cover

or pipeline distancing. They sought neither injunctive relief nor a civil penalty under

49 C.F.R. §§195.210, 195.248 or 195.250. 

We reject the Commission’s argument that a general citation to 52 Pa.

Code §59.33, which adopted Part 195 of the C.F.R., was sufficient to put Sunoco on

notice that it was charged with a violation of the specific requirements of 49 C.F.R.

§§195.210, 195.248 or 195.250. As in Duquesne Light Company and Pocono Water

Company, this lack of notice to Sunoco violated due process. Accordingly, we

reverse the Commission’s holding that Sunoco violated the pipeline depth of cover

and distance regulations.13 

Public Awareness Program

Sunoco argues, next, that the Commission erred in ordering Sunoco to 

make changes to its public awareness program that are not set forth in any state or

federal law. Further, the Commission’s adjudication is inconsistent with the ALJ’s 

findings about Sunoco’s public awareness program implemented in Delaware and 

Chester Counties.

The ALJ found that Sunoco does more training and funds more 

equipment purchases than any other pipeline operator in the area. ALJ Initial 

public awareness program under 49 C.F.R. §195.440); Britton Complaint ¶¶5, 11; R.R. 361a, 364a

(political subdivisions were not presented with adequate information from Sunoco to adequately 

prepare and mitigate for the public health and safety under 49 C.F.R. §195.440); Obenski 

Complaint ¶1; R.R. 635a-37a (Sunoco’s public awareness program failed to appropriately educate 

all members of the community who are at risk from the operation of the Mariner East network); 

and Andover Complaint ¶¶87, 93, 97, 98; R.R. 747a-49a (Sunoco’s public awareness program 

leaves association members without either a credible notification system or emergency plan).

13 Because we reverse the Commission’s adjudication insofar that Sunoco violated the federal 

pipeline depth of cover and distance regulations, we need not address Sunoco’s arguments that the 

Commission misinterpreted these federal depth of cover and distance regulations because they 

apply only to the construction of new pipelines, not to the maintenance or operation of an existing 

pipeline. Likewise, we need not address Sunoco’s argument that, in any case, the findings of fact 

relevant to a purported violation are not supported by substantial evidence.
27

Decision at 59, F.F. No. 320. The ALJ also found that Sunoco has informed the 

municipalities and school districts in Delaware and Chester Counties of the location 

of its pipelines and valve stations and their proximity to schools; the products in the 

pipelines and their physical properties; the hazards of those products; a rule of thumb 

for a safe distance in the event of a significant release; the direction of flow of 

product in the pipelines; the product between the corresponding valve sites that will 

be released in the event of a catastrophic release; plume modeling; Sunoco’s

integrity management, security and PHMSA compliance programs; and Sunoco’s

remote monitoring center for leak detection. ALJ Initial Decision at 60, F.F. No. 

324. 

These findings demonstrate Sunoco’s compliance with the minimum 

requirements for its public awareness program set forth in 49 C.F.R. §195.440 and

API RP 1162. Nevertheless, the Commission concluded that Sunoco’s public 

awareness program did not meet the requirement of “reasonable service” under 66 

Pa. C.S. §1501 and, thus, imposed more requirements listed in Paragraph No. 18 of 

its order. The Commission did so without citing any “authority mandating these 

meetings or requiring Sunoco [] to undertake all the various elements of Order ¶18.” 

Sunoco Brief at 59. 

Sunoco argues that the Commission’s “reasonable service” 

expectations are not grounded in an existing state or federal law. The ALJ 

acknowledged in the Initial Decision that the Commission has undertaken

rulemaking in this area and is seeking comments regarding: (1) utility interaction 

with local government officials on such topics as emergency planning and response 

coordination and periodic drills with utility/municipal coordination; (2) periodic 

public awareness meetings with municipal officials and the public; and (3) 

enhancements to public utility public awareness programs under 49 C.F.R. §195.440 

and API RP 1162. ALJ Initial Decision at 77. Sunoco argues that the Commission
28

has imposed these proposed rulemaking requirements on Sunoco, in advance of their 

adoption.

The Commission responds that as a public utility, Sunoco must provide 

safe and reasonable service, which includes the obligation to “use every reasonable 

effort to properly warn and protect the public from danger.” 52 Pa. Code §59.33(a). 

The federal regulation at 49 C.F.R. §195.440 specifically requires enhanced

communication with local public officials where the pipeline is located in a high 

consequence area, which includes Delaware and Chester Counties. The Commission 

argues that Sunoco failed to meet this obligation.

The Commission asserts the Public Utility Code gives the Commission 

the discretion to order a utility to take action in the interest of reasonable service

without a specific regulation. The Commission may “prescribe, by regulation or 

order,” the “repairs, changes, alterations, extensions, substitutions, or improvements 

in facilities as shall be reasonably necessary and proper for the safety, 

accommodation, and convenience of the public.” 66 Pa. C.S. §1505(a) (emphasis 

added).

14

 That the Commission is concurrently exercising its rulemaking power did 

not prevent it from prescribing specific measures to address the safety and 

reasonableness of Sunoco’s Mariner East pipeline system under authority of 66 Pa. 

C.S. §1505(a).

14 It reads:

(a) General rule.--Whenever the commission, after reasonable notice and hearing, 

upon its own motion or upon complaint, finds that the service or facilities of any 

public utility are unreasonable, unsafe, inadequate, insufficient, or unreasonably 

discriminatory, or otherwise in violation of this part, the commission shall 

determine and prescribe, by regulation or order, the reasonable, safe, adequate, 

sufficient, service or facilities to be observed, furnished, enforced, or employed, 

including all such repairs, changes, alterations, extensions, substitutions, or 

improvements in facilities as shall be reasonably necessary and proper for the 

safety, accommodation, and convenience of the public.

66 Pa. C.S. §1505(a).
29

The Commission contends that its interpretation of the Public Utility 

Code and its own regulations is entitled to deference. Commission Brief at 34 (citing

Crown Castle NG East LLC v. Pennsylvania Public Utility Commission, 234 A.3d 

665, 678 (Pa. 2020)). The regulation at 49 C.F.R. §195.440 requires the public 

awareness program to “be as comprehensive as necessary to reach all areas in which 

the operator transports hazardous liquid[.]” 49 C.F.R. §195.440(f). The 

Commission asserts that it acted “well within the purpose and intent” of the federal 

regulations by prescribing reasonable public awareness measures appropriate for the 

high consequence areas of Chester and Delaware Counties. Commission Brief at 

49.

In addition, Section 1501 of the Public Utility Code requires safe and 

reasonable service. It states:

Every public utility shall furnish and maintain adequate, 

efficient, safe, and reasonable service and facilities, and shall 

make all such repairs, changes, alterations, substitutions, 

extensions, and improvements in or to such service and facilities 

as shall be necessary or proper for the accommodation, 

convenience, and safety of its patrons, employees, and the public. 

Such service also shall be reasonably continuous and without 

unreasonable interruptions or delay. Such service and facilities 

shall be in conformity with the regulations and orders of the 

commission. 

66 Pa. C.S. §1501 (emphasis added). Consistent with Section 1501, the Commission 

has promulgated 52 Pa. Code §59.33, which has adopted the federal regulations on 

natural gas safety. It states, in relevant part, as follows:

(a) Responsibility. Each public utility shall at all times use every 

reasonable effort to properly warn and protect the public from 

danger, and shall exercise reasonable care to reduce the hazards 

to which employees, customers and others may be subjected to 

by reason of its equipment and facilities.

(b) Safety code. The minimum safety standards for all natural gas 

and hazardous liquid public utilities in this Commonwealth shall 
30

be those issued under the pipeline safety laws as found in 49 

U.S.C.A. §§60101-60503 and as implemented at 49 CFR Parts 

191-193, 195 and 199, including all subsequent amendments 

thereto. Future Federal amendments to 49 CFR Parts 191-193, 

195 and 199, as amended or modified by the Federal government, 

shall have the effect of amending or modifying the 

Commission’s regulations with regard to the minimum safety 

standards for all natural gas and hazardous liquid public utilities. 

52 Pa. Code §59.33(a), (b). 

The federal regulation “prescribes safety standards and reporting 

requirements for pipeline facilities used in the transportation of hazardous liquids[.]” 

49 C.F.R. §195.0. With respect to “public awareness,” it states:

(a) Each pipeline operator must develop and implement a written 

continuing public education program that follows the guidance 

provided in the American Petroleum Institute’s (API) 

Recommended Practice (RP) 1162 (incorporated by reference, 

see §195.3).

(b) The operator’s program must follow the general program 

recommendations of API RP 1162 and assess the unique 

attributes and characteristics of the operator’s pipeline and 

facilities.

(c) The operator must follow the general program 

recommendations, including baseline and supplemental 

requirements of API RP 1162, unless the operator provides 

justification in its program or procedural manual as to why 

compliance with all or certain provisions of the recommended 

practice is not practicable and not necessary for safety.

(d) The operator’s program must specifically include provisions 

to educate the public, appropriate government organizations, 

and persons engaged in excavation related activities on:

(1) Use of a one-call notification system prior to 

excavation and other damage prevention activities;

(2) Possible hazards associated with unintended 

releases from a hazardous liquid or carbon dioxide 

pipeline facility;

(3) Physical indications that such a release may 

have occurred;
31

(4) Steps that should be taken for public safety in 

the event of a hazardous liquid or carbon dioxide 

pipeline release; and

(5) Procedures to report such an event.

(e) The program must include activities to advise affected 

municipalities, school districts, businesses, and residents of 

pipeline facility locations.

(f) The program and the media used must be as comprehensive 

as necessary to reach all areas in which the operator transports 

hazardous liquid or carbon dioxide.

* * * *

(i) The operator’s program documentation and evaluation 

results must be available for periodic review by appropriate 

regulatory agencies.

49 C.F.R. §195.440 (emphasis added).

In sum, a pipeline operator must follow “the general program 

recommendations, including baseline and supplemental requirements of API RP 

1162[.]” 49 C.F.R. §195.440(c) (emphasis added). In turn, API RP 1162 defines,

in relevant part, “baseline public awareness program[,]” as

[r]efer[ring] to general program recommendations, set forth in 

[API RP] 1162[.] The baseline recommendations do not take 

into consideration the unique attributes and characteristics of 

individual pipeline operators’ pipeline and facilities. 

Supplemental or enhanced program components are described 

in the RP to provide guidelines to the operator for enhancing its 

Public Awareness Programs.

R.R. 1129a (emphasis added). Satisfying the “baseline recommendations” does not 

preclude “enhanced program components.” Id. Accordingly, API RP 1162 states

that a “one-size-fits-all” Public Awareness Program across all pipeline systems 

would not be the most effective approach. R.R. 1134a. 

Relevant hereto, API RP 1162 includes Table 2.1, which sets forth the

baseline messages to be included in pipeline operators’ public awareness 
32

communications. Table 2.1 then provides that in high consequence areas, or HCA, 

pipeline operators should increase the frequency of their communications, provide

supplemental messages, and have personal contact with the local officials.

R.R. 1138a.15

Complainants had the burden to prove that Sunoco’s public awareness 

program did not satisfy 66 Pa. C.S. §1501, which requires a utility to provide safe 

15 NPMS stands for National Pipeline Mapping System. ROW stands for Pipeline Right-of-Way. 

R.R. 1130a. 
33

and reasonable service. Povacz v. Pennsylvania Public Utility Commission, 280 

A.3d 975, 1005 (Pa. 2022) (citing Lansberry v. Pennsylvania Public Utility 

Commission, 578 A.2d 600, 602 (Pa. Cmwlth. 1990)). Complainants presented 

evidence that Sunoco’s CoRE meetings and MERO trainings did not provide the

information needed by local officials to develop their emergency response plans; 

that Sunoco refused to meet with local public officials and emergency responders 

outside the CoRE meetings and MERO trainings; that emergency responders, school 

districts, and residents are confused and concerned over steps to be taken in a 

pipeline emergency; and that local public officials found it difficult to obtain 

additional information from Sunoco needed for emergency preparedness. The ALJ 

found that because Delaware and Chester Counties have been designated high 

consequence areas, Sunoco was “required to devote additional focus, effort and 

analysis to ensure the integrity of its pipelines.” ALJ Initial Decision at 140. 

Accordingly, “if the school districts and municipalities and counties want more 

information and emergency responder training, then it is unreasonable service for 

the operator to not oblige this request.” Id.

The Commission agreed. Accordingly, the Commission ordered the 

payment of a $1,000 civil penalty and directed Sunoco to arrange meetings with the 

commissioners of Delaware and Chester Counties and with the relevant

municipalities’ supervisors to assist their emergency preparedness and evacuation 

plans. Sunoco argues that this order exceeded the Commission’s statutory authority. 

Sunoco Brief at 58-59 (citing Commission Adjudication, 11/18/2021, ¶18). We are 

not persuaded.

Section 1505 of the Public Utility Code authorizes the Commission to 

prescribe remedial action upon a violation of Section 1501 “as shall be reasonably 

necessary and proper for the safety, accommodation, and convenience of the public.” 

66 Pa. C.S. §1505. The language in both 49 C.F.R. §195.440 and API RP 1162 
34

provides that a public awareness program must be adapted to meet the particular 

circumstances and conditions present. The regulation specifically permits 

“appropriate regulatory agencies” to review operators’ program documentation and 

evaluation results. 49 C.F.R. §195.440(i). More specifically, Section 2.8 of API RP 

1162, Table 2.1, provides that operators, in their communications with emergency 

officials and local public officials, should address, inter alia, “pipeline purpose and 

reliability,” “awareness of hazards and prevention measures undertaken,”

“emergency preparedness communications,” and “how to get additional 

information.” R.R. 1138a. Where a pipeline is located in a high consequence area, 

operators should have “personal contact” with local public officials and provide 

supplemental messages including “[m]aintenance construction activity.” Id.

Supplemental activity for communications with emergency officials should include 

“emergency tabletop, deployment exercises,” “facility tour,” and “open house.” Id.

We conclude that the remedial actions ordered by the Commission with 

respect to Sunoco’s public awareness program fall within the scope of 49 C.F.R. 

§195.440 and API RP 1162, which were adopted by the Commission at 52 Pa. Code 

§59.33. These regulations authorized the Commission to order revisions in Sunoco’s 

existing program to ensure the delivery of safe and reasonable service. 

Notably, in adopting the ALJ’s Initial Decision, the Commission denied 

Complainants’ requests to include information in Sunoco’s public mailers such as 

“what a safe distance is before using a cellular phone, wind direction and other 

means of transporting persons other than walking away and upwind from a release.” 

ALJ Initial Decision at 140. These requests, as the ALJ concluded, are outside the 

scope of state and federal law and, thus, should be referred to the Commission’s 

rulemaking proceeding. The Commission’s injunctive relief was narrowly tailored 

to address the ways in which Sunoco’s public awareness program, as implemented,
35

has not satisfied Section 1501 of the Public Utility Code and Section 59.33 of the 

Commission regulations.

For these reasons, we affirm the Commission’s adjudication that

Sunoco’s public awareness program did not comply with 66 Pa. C.S. §1501 and 52

Pa. Code §59.33, and a civil penalty of $1,000.

Conclusion

Sunoco’s decision to discontinue transporting HVLs through ME1 and 

the workaround pipelines did not render irrelevant the constraints imposed by the 

Commission on Sunoco, which may decide to use the pipelines to transport HVLs

in the future. Accordingly, we deny the Commission’s motion to dismiss. We hold

that Sunoco’s purported violation of the pipeline depth of cover and distance 

regulations set forth in 49 C.F.R. §§195.210(b), 195.248, and 195.250 was not a 

matter at issue in the litigation before the Commission, and, thus, reverse the 

Commission’s adjudication thereon. However, we hold that the Commission did not 

err in concluding that Sunoco’s public awareness program failed to meet the 

reasonable service standard required by 66 Pa. C.S. §1501. Accordingly, we affirm

the Commission’s adjudication requiring changes to Sunoco’s public awareness 

program and the payment of a $1,000 civil penalty.

For these reasons, we affirm in part and reverse in part the 

Commission’s adjudication.

 ____________________________________________

 MARY HANNAH LEAVITT, President Judge Emerita

Judge Fizzano Cannon and Judge Wallace did not participate in the decision in this 

case.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sunoco Pipeline, L.P., : CASES CONSOLIDATED

Petitioner :

:

v. : Nos. 1415-1419 C.D. 2021

: No. 1421 C.D. 2021

Public Utility Commission, :

Respondent :

O R D E R

AND NOW, this 5th day of May, 2023, the Public Utility 

Commission’s motion to dismiss for mootness is DENIED. The Public Utility 

Commission’s adjudication and order dated November 18, 2021, in the abovecaptioned matter, is AFFIRMED in part and REVERSED in part in accordance with 

the foregoing opinion.

 ____________________________________________

 MARY HANNAH LEAVITT, President Judge Emerita