Delmont, Pennsylvania to its Twin Oaks Pennsylvania facility. In doing so, we recognized our prior rulings and those of federal agencies holding that propane is a “petroleum product” and that “approval of the Petition is in the public interest, as Sunoco’s proposed provision of intrastate propane service will result in numerous potential public benefits,” including the need for adequate pipeline capacity to meet peak demand for propane and the avoidance of “the added expense and risks associated with trucking propane from the Marcellus Shale region.” Id. at 9-10. Unopposed tariffs were subsequently filed and approved for the institution of the intrastate movement of propane at a rate of $2.91/bbl. Sunoco Pipeline, L.P. Request for Approval of Tariff Pipeline - Pa. P.U.C. No. 16 and Waiver of 52 Pa. Code § 53.52(b)(2) and (c)(1) through (5), Docket No. R-2014-2426158 (Order entered August 21, 2014) (Tariff No. 16 Order). Finally, in August of this year, Sunoco received our approval to extend its service territory to include Washington County. Application of Sunoco Pipeline, L.P. for Approval of the Right to Offer, Render, Furnish or Supply Intrastate Petroleum and Refined Petroleum Products Pipeline Service to the Public in Washington County, Pennsylvania, Docket No. A-2014-2425633 (Order entered August 21, 2014) (Washington County Application Order). In seeking this additional certification, Sunoco stated its intent to establish the Houston, Washington County location as part of the first phase of the Mariner East project as the new origination point for the NGLs of propane and ethane to be transported and the expansion of its pipeline system in a second phase of the Mariner East project. This second phase will be a new sixteen-inch or larger pipeline, paralleling the existing pipeline from Houston, Pennsylvania to the Marcus Hook Industrial Complex (MHIC) and running along much of the same route, as well as the addition of fifteen miles of pipeline from Houston, Pennsylvania to a point near the Pennsylvania-Ohio boundary line. Id. at 2-3. In approving the Washington County Certificate, we stated:
pipeline operator is denied a Certificate because it is also operating as a common carrier under federal law, then the operator would not be able to provide both intrastate and interstate service. Id. at 27-28. Sunoco indicates that it is regulated by FERC as a common carrier and by the Commission as a public utility. Id. at 28. Sunoco contends that the Initial Decision’s reliance on FERC’s February 15, 2013 Order to support the finding that Sunoco is not a public utility corporation was misplaced. According to Sunoco, FERC ensured that a percentage of Sunoco’s pipeline would remain available for intrastate shipments by providing that ten percent of the pipeline remained for uncommitted shippers. Additionally, Sunoco states that the FERC decision is factually different from its Amended Petitions that are before the Commission, because when Sunoco petitioned FERC for a declaratory order, Sunoco was planning to use the Mariner East pipeline to provide interstate transportation service of NGLs and was not planning to provide intrastate transportation service for propane at that time. Sunoco indicates that, due to the increased shipper demand for intrastate shipments of propane in 2013 to 2014, it modified the scope of the first phase of the Mariner East project to provide for the acceleration of intrastate pipeline transportation service. Id. at 29. Sunoco notes that these changes occurred after the FERC proceeding concluded in February 2013. Sunoco avers that the FERC Order did not relate to or impact Sunoco’s ability to provide intrastate service or otherwise affect its status as a public utility. Id. at 30. Sunoco asserts that the Initial Decision’s reliance on Loper, supra, is also misplaced, as that case is legally and factually distinguishable. Sunoco states that, like the FERC Order, the Loper decision was issued before Sunoco modified its business plans to address the rising demand for intrastate shipments of propane. Sunoco explains that, in Loper, the court rejected Sunoco’s argument that it met the definition of a public utility corporation under the BCL because it was a common carrier regulated by FERC
and, therefore, was subject to regulation as a public utility by “an officer or agency of the United States.” Sunoco avers that the court could not consider whether it qualified as a public utility corporation due to regulation by the Commission at that time because Sunoco had not yet proposed to provide intrastate service. Id. CAC In its Replies to Exceptions, CAC avers that the ALJs correctly found that Sunoco’s proposed Mariner East pipeline service does not meet the definition of public utility service under Section 102 of the Code. CAC R. Exc. at 4. CAC contends that Sunoco’s assertion that it plans to use a small amount of propane, specifically 5,000 barrels out of the pipeline’s daily capacity of over 70,000 barrels for potential distribution to Pennsylvania consumers, when its pipeline is primarily designed to provide interstate service for eventual shipping to foreign markets, is insufficient to permit Sunoco to transform its project into public utility service for Pennsylvanians. Id. at 5. CAC states that Sunoco’s Amended Petitions do not contain any statements that affirmatively indicate any change in the primary purpose of the proposed project, nor do they contain any statements indicating that propane delivered to the Twin Oaks facility would definitely be delivered to Pennsylvania customers. Id. at 5-6. CAC believes that Sunoco’s Petitions were “artfully phrased,” because they stated that 5,000 barrels of propane would initially be delivered to the Twin Oaks facility, from which point it is possible that propane could then be delivered through third party distributors intrastate to Pennsylvania residents. Id. at 6 (citing Amended Petitions at 2). CAC also believes that, based on Sunoco’s statements, it is equally possible that 5,000 barrels might be temporarily stored at Twin Oaks and later shipped to other states or to international markets. CAC asserts that Sunoco’s language in its Exceptions is also broad and vague, as it attempts to argue that Sunoco’s proposed project will be for the public
insufficient to give the Commission jurisdiction over a Section 619 petition, because FERC regulation of petroleum pipelines is regulation as a common carrier, not as a public utility. CCWGT R. Exc. at 11. WGT In its Replies to Exceptions, WGT states various reasons why it believes Sunoco’s proposed Mariner East project does not meet the definition of a public utility under the Code and Pennsylvania law. WGT avers that, until Sunoco applies for a Certificate for the project and indicates a legal basis for its plan to provide intrastate public utility service, its Amended Petition is not supported or timely. WGT R. Exc. at First, WGT contends that Sunoco has not shown that the proposed project will serve the public in Pennsylvania, as the capacity that will be available for intrastate shippers is an open question, which WGT submits cannot properly be addressed in a Section 619 petition. Id. at 7-8. Second, WGT contends that Sunoco’s Certificate authorizing different services is irrelevant to the service Sunoco intends to provide through the Mariner East pipeline. WGT states that Sunoco is required to amend its Certificate or to obtain a new Certificate, pursuant to Section 1102(a)(1) of the Code, 66 Pa. C.S. § 1102(a)(1), because, according to WGT, Sunoco will be providing service of a different nature. Id. at 8. WGT cites to two Pennsylvania cases in support of its argument that Sunoco must go through an additional application proceeding in order to add services or territory not originally included in its Certificate. WGT avers that Sunoco’s current Certificate does not pertain to west to east transportation of propane or ethane or to the pressure and other conditions that will apply to the Mariner East project and, as such, Sunoco does not have authorization for the proposed service. Id. at 8, 9, 10-15. WGT also avers that safety
Furnish or Supply Telecommunications Services as a Competitive Local Exchange Carrier to the Public, Docket No. A-310183F0002AMA, et al. (Order entered December 1, 2006). Thus, the provision of wholesale services can clearly fall within the definition of public utility services, which is evident with the existence of numerous certificated utilities providing wholesale services, including seven certificated wholesale pipelines operating in Pennsylvania in addition to Sunoco, and numerous certificated telephone utilities providing wholesale only services. Moreover, whether a service is considered to be offered for the public does not depend on the number of persons who actually use the service. Rather, the determination depends on the service offering and whether the service is available to all members of the public, or a class of the public, who may require the service. See, C.E. Dunmire Gas Co. v. Pa. PUC, 413 A.2d 473, 474 (Pa. Cmwlth. 1980). For these reasons, we believe the ALJs erred in granting the Preliminary Objections based on lack of jurisdiction. Accordingly, we shall grant Sunoco’s Exception on this issue; reverse the ALJs’ decision granting these Preliminary Objections; deny the pertinent Preliminary Objections of CCWGT, DRN, MWA, and CAC; and remand this case to the OALJ for further proceedings, consistent with this Opinion and Order. The Scope of Sunoco’s Existing Certificate Authority The product to be shipped by Sunoco – “petroleum products” – is a broad term that includes both propane and ethane. While gasoline and fuel oil were the original products that were shipped in the pipelines until 2013, there is no restriction in any approved Certificate limiting Sunoco’s services to these particular products. In Petition of Granger Energy of Honey Brook, LLC, Docket No. P-00032043 (Order entered August 19, 2004) at 9, we gave the undefined term “petroleum products,” as used in Section 102 of the Code, a broad meaning as a “catch all phrase” to include what would otherwise be