Category Archives: Construction

Troubling Questions Raised by Email Exchanges

An email exchange between Rick Webb of Dominion Pipeline Monitoring Coalition (DPMC) and the Virginia Department of Environmental Quality (DEQ), regarding DEQ’s handling of mail sent to the State Water Control Board, raises questions about why DEQ is apparently withholding information from State Water Control Board members prior to their meeting on August 21, 2018.

Further, DEQ will not finish its summary of comments submitted to the Board until the date of the meeting itself. But according to an August 17, 2018, Blue Virginia article about an email exchange between David Sligh of Wild Virginia, DEQ has not given to SWCB members the report by Wild Virginia and DPMC summarizing the 13,000+ comments made during the April-June comment period.

Is DEQ trying to limit what information SWCB members see?

Webb’s report documents DEQ’s failure to consider the impact that construction of Atlantic Coast and Mountain Valley Pipelines would have and already has had on Virginia’s water quality.  Regarding the email exchange, Webb writes, “The correspondence below concerns what amounts to a wholesale waiver of Virginia’s limits on the length of contiguous open trench during pipeline construction.

“If DEQ accepts Dominion’s waiver request (incorporated in the Erosion and Sediment Control Plans currently under review), open trenches (up to 12 ft deep and 30 ft wide at the top) will be allowed top-to-bottom on all the steep mountains crossed by the ACP in western Virginia. Note that DEQ and Dominion propose to limit the total open-trench length in any given construction spread to 16,000 ft. This is not protective in any meaningful sense because it will still allow open trenches on all mountainsides – from the top of the ridge to the stream below.

“FYI, we have conducted research related to DEQ’s waiver of the open-trench limitation (a minimum standard in the ESC regulations).  We examined DEQ records for 12 such open-trench variance requests made through 2015. We found that DEQ granted all such requests, with the longest being for a 15-mile open trench in southern Virginia. We concluded then. and It is still safe to say, that prior to review of the ACP and MVP, DEQ’s involvement with pipeline projects was limited to granting variances to critical regulatory requirements. There was essentially no review or oversight. This helps somewhat to explain DEQ’s present difficulties.”

On Friday August 10, Rick Webb wrote to DEQ:

RE: Comment concerning Mountain Valley Pipeline (MVP) and Atlantic Coast Pipeline (ACP) Projects
State Water Control Board Request for Technical Information on Specific Wetland and/or Stream Crossings

FR: Rick Webb on behalf of Dominion Pipeline Monitoring Coalition (DPMC)

This comment concerns the above-cited public notice posted on the Virginia Regulatory Town Hall on April 27, 2018, entitled Mountain Valley Pipeline (MVP) and Atlantic Coast Pipeline (ACP) Projects – State Water Control Board Request for Technical Information on Specific Wetland and/or Stream Crossings. Comments were previously submitted by me, Rick Webb, on behalf of the DPMC during the officially designated comment period. This comment concerns significant information that was not available during the officially designated comment period.

Newly obtained information indicates that Dominion Energy has proposed to the Virginia Department of Environmental Quality (DEQ) and may be granted a general variance to Virginia Erosion and Sediment Control Regulation Minimum Standard 16A (VAC 25-840-40.16A, which requires that no more than 500 linear feet of trench may be open at one time.

Deep open trenches extending down from the tops of mountains greatly increase the risk of uncontrolled runoff and sedimentation at stream crossings. The increased risk is due both to concentration of runoff in the trench and due to interference with installation of other erosion control measures (e.g., the proper installation of water interceptor diversions across the disturbed corridor area). The potential impact of waiving open-trench limits was not addressed in the Clean Water Act Section 404 permit review by the U.S. Army Corps of Engineers.

Concerns were raised about open-trench variances at the December 12, 2017 meeting of the State Water Control Board, where Melanie Davenport, Water Permitting Division Director for DEQ, answered a board member question concerning variance requests and factors considered. In response, Ms. Davenport indicated that open trench lengths would be limited depending on the percent slope. To the extent that this response provided assurance to the board, it was misleading.

Dominion now proposes that a three-tiered set of criteria be applied to determine allowable open-trench lengths, as follows:

  • Where slopes are <10%, the maximum allowable contiguous open-trench length would be 7,000 feet.
  • Where slopes are 10 to <33%, the maximum allowable contiguous open-trench length would be 5,000 feet.
  • Where slopes are >33%, the maximum allowable contiguous open-trench length would be 2,500 feet.

These criteria effectively waive open-trench limits. The ACP will cross many steep-sided mountains with the construction corridor running down to stream crossings. These criteria will allow uninterrupted open trenches on all of these mountains. In the event of significant rainfall and runoff, impacts at stream crossings will be unavoidable. This one among many reasons why the State Water Control Board cannot simply rely on the Section 404 general permit to prevent violation of water quality standards and protect water resource uses.

On behalf of the DPMC, I ask that the board give careful consideration to this significant problem.

Thank you,

Rick Webb

On Friday August 17 he received this response:

Thank you for your recent email to the State Water Control Board (Board).

In addition, if your email contained specific complaint information, the email has been forwarded to compliance staff to ensure they have the information.

Cindy M. Berndt
Director, Regulatory Affairs
Department of Environmental Quality
1111 East Main Street, Suite 1400
P.O. Box 1105
Richmond, Virginia 23218
804.698.4378 [Call: 804.698.4378]

Webb replied, also on Friday August 17:

Ms. Berndt,

Thank for your message below acknowledging my recent comments to the State Water Control Board.

I request a copy of any submissions to the Board concerning my comments, including my comments (the email copied below) and any related summaries, advice, or other information provided to the Board by DEQ. Please also let me know which Board members received the material.

My comments addressed significant information that was not available during the officially designated comment period, and these new comments were submitted 10 days prior to the upcoming Board meeting. I seek to confirm and ensure that my comments concerning this information was provided to the Board to inform its deliberations on the sufficiency of the NWP12 for permitting waterbody crossings associated with the ACP and MVP pipeline proposals.

Thank you.

Rick Webb


From Rick Webb on Sunday afternoon August 19, 2018: Update: I did hear back from Cindy M. Berndt, Director, Regulatory Affairs, Department of Environmental Quality. She confirmed that my email concerning the open-trench waiver has been forwarded to each member of the State Water Control Board. Based on this and other well-documented deficiencies associated with regulatory review and oversight of stream crossings, there is no “reasonable assurance” that the ACP and MVP will or can be constructed without harm to Virginia’s water resources. The board should withdraw 401 certification for both projects.

Mountain Valley Watch Issues Report

After three months of monitoring the construction work on the Mountain Valley Pipeline, Mountain Valley Watch, a citizen watchdog group, has submitted detailed comments to the Virginia State Water Control Board. Through August 7, 2018, Mountain Valley Watch volunteers submitted 277 reports of suspected improper erosion controls at Southwest Virginia construction sites, reports which professional engineers and academics evaluated before submitting 58 complaints to DEQ.

The executive Summary of the report states, “The data demonstrates that:

  • Precision Pipeline frequently failed to employ Best Management Practices and properly install required erosion control devices and maintain them. The direct result is the serious impairment of Virginia waters.
  • The extent and repetition of these failures (often in the same location), consistent with research in referenced journals, indicates the limitations of BMPs in mountainous terrain. BMPs are not infallible, nor are they intended to be so; they are designed to minimize adverse impacts. Rain events, well within the standard of “normal,” on steep slopes of upland watersheds overwhelm BMPs. This is documented in scientific reports in refereed journals.
  • The processes by which DEQ decided the Nationwide Permit 12 and conducted the 30 day public comment period were fundamentally flawed, contributing to an unsubstantiated opinion that MVP construction would not significantly impair Virginia waters. This report demonstrates significant sediment loading into streams.
  • It is imperative that DEQ and the SWCB revisit their decisions to approve the Section 401 Certification and Nationwide 12 permit for the Mountain Valley Pipeline.
  • There is a reasonable likelihood, based in on the facts on the ground, that continued construction will continue to significantly adversely impact Virginia water for years to come.

SELC Asks FERC to Reject Request to Proceed

On August 13, 2018, Dominion asked FERC to ignore the stop work order FERC had issued for the ACP on August 10 and allow Dominion to continue construction on some segments of the ACP (see story below). On August 15, the Southern Environmental Law Center, on behalf of multiple organizations, submitted a letter asking FERC

  • to reject Dominion’s request to proceed with construction of three separate segments, and
  • to reject Dominion’s request that the Commission’s stop-work order only relates to the vacatur of the National Park Service’s right-of-way permit, and not to the vacatur of the Fish and Wildlife Service’s Incidental Take Statement

The letter states, “The Commission must not approve construction of portions of the ACP because the three segments proposed by Atlantic would constitute new interstate projects, distinct from the ACP, with different purposes and different potential customers. Atlantic has not submitted a certificate application to the Commission for any of these projects, and the Commission has not reviewed the public convenience and necessity of these segments as required by the Natural Gas Act.”

In a footnote commenting on the August 15 submission by Dominion of a second request to continue construction on additional segments on the basis of “independent utility,” SELC says the arguments in their letter “apply equally to this second, and any subsequent, request to continue construction.”

The letter further states that “the Fourth Circuit has resolved any ambiguity about the effects of its vacatur of ACP’s Incidental Take Statement: Atlantic will violate its certificate of public convenience and necessity if it proceeds with construction without a valid ITS. Again, the Commission must decline Atlantic’s invitation to make a finding that is squarely in conflict with the Court’s opinion on this issue.”

The letter continues with a detailed explanation of why FERC “must reject Atlantic’s request to construct segments of the Atlantic Coast Pipeline on the basis of ‘independent utility,'” and why “all construction must stop until Fish and Wildlife Service approvals are in place.”

Read the full letter here.

Dominion Asks to Proceed Piecemeal

Immediately after FERC issued the Atlantic Coast Pipeline stop work order late on Friday August 10, 2018, Dominion issued a statement saying it was already working with agencies to resolve issues in the stop work order, and separate project sections not impacted by the court ruling could become viable gas infrastructure.

In a letter to FERC on Monday August 13, 2018, Mathew Bley, director of gas certificates for Dominion Energy Transmission, explained that independent segments unaffected by the court ruling could serve as gas transportation infrastructure by themselves.

“Natural gas received via (supply header project in West Virginia), at Marts, can be redelivered by the planned ACP pipeline to its Long Run delivery point into Columbia Gas Transmission Corporation LLC, in Randolph County, West Virginia … The Long Run interconnection thus would provide a substantial, viable, competitive supply option for existing Columbia Transmission shippers, even if other portions of ACP were not constructed. Subject to avoidance of any areas affected by the vacatur of the ITS … Atlantic should be allowed to proceed with construction of this useful component of the ACP.

“The ACP infrastructure from its Buckingham, Va., interconnection with Transcontinental Gas Pipe Line Company LLC (Transco) to points downstream could be used for gas deliveries to markets in both North Carolina and eastern Virginia. These markets are chronically constrained in terms of natural gas supply. Independent of ACP’s proposed construction of pipeline upstream of the Buckingham – including areas affected by the Aug. 6 court order – ACP could receive up to 885,000 Dt/day from Transco for service on the ACP main line and the Virginia lateral.

“Depending on the availability of supply and relative operating pressures on the Transco system, ACP expects that its physical receipts at Buckingham could exceed 885,000 Dt/day. Although this approach would not provide the full benefit of access to the DETI system and the liquid South Point market hub (which customers expect upon completion of the ACP), this portion of the ACP infrastructure … would serve to redeliver gas to Hampton Roads and eastern North Carolina markets, where interstate pipeline capacity is either already fully subscribed, or nonexistent.”

Dominion asked FERC to “promptly allow construction to resume for the independently useful portions of the projects.”

It appears Dominion is tacitly admitting that the entire ACP is not necessary, and gas could be delivered to both existing and future markets by other means.

However, as pointed out by Southern Environmental Law Center in its letter of August 15, 2018 urging FERC to deny Dominion’s request to move forward on certain parts of the ACP, “If these segments do not serve the purpose Atlantic intended them to serve as interdependent parts of the approved ACP, they are separate projects that must go through the approval process set forth in the Natural Gas Act.” (See story above)

4th Circuit Court Vacates Two ACP Permits


On August 6, 2018, the three-judge panel of the 4th Circuit Court of Appeals released a unanimous opinion on its May 15 Order that vacated the Fish and Wildlife Service’s biological opinion for the Atlantic Coast Pipeline. The long-awaited opinion, written by Chief Judge Roger L. Gregory, also vacated the Right-of-Way permit issued by the National Park Service for drilling under the Blue Ridge Parkway.

The Court said the Fish and Wildlife’s “taking order,” authorizing the pipeline to “‘take’ — i.e. kill, harm, or harass — five species that are listed as threatened or endangered” is “arbitrary and capricious” because the so-called “take limit” is unenforceable.

The Court also said that because the National Park Service failed to explain how the ACP crossing of the Blue Ridge Parkway “is not inconsistent with the purposes of the Parkway and the overall National Park System,” that permit is also “arbitrary and capricious.”

Defenders of Wildlife, the Sierra Club, and the Virginia Wilderness Committee, represented by the Southern Environmental Law Center, had challenged both the Fish and Wildlife Service and the National Park Service decisions.

Read the full opinion here.

The Court’s decision to vacate the National Park Service permit for the ACP to cross the Blue Ridge Parkway was unexpected. Thanks to Friends of Nelson’s Marilyn Shifflett, who has provided the following summary quotes from the decision:

“A visual impact study conducted by ACP and overseen by NPS concluded that the corridor would be visible from at least one key observation point along the Parkway, thus significantly decreasing the park’s scenic value. J.A. 1020. Specifically, the analysis concluded that ‘[v]iews of the ACP corridor from the Three Ridges overlook . . . would likely be inconsistent with NPS management objectives, given the proximity to the viewer, the axial nature of the view, and the corridor’s contrast with the surrounding forest.’

In other words, NPS enabled and virtually ensured the alleged harm to the Parkway’s aesthetic value.”

***
“In this case, if this Court were to invalidate the NPS permit as requested, the pipeline cannot exist in its proposed form with its current authorizations and would have to be re-authorized with a new permit or possibly a new route to proceed.”

***
“Even assuming that either § 460a-3 or § 460a-8 confers general authority on NPS to grant oil and gas rights-of-way through Blue Ridge Parkway property, we conclude that NPS has acted arbitrarily and capriciously by failing to explain why ACP’s pipeline is not inconsistent with parkway purposes.”

***
“The Blue Ridge Parkway also has its own conservation and preservation purpose, according to NPS’s General Management Plan for the Parkway. Under the Plan, the Parkway’s specific purposes are to “connect . . . national parks by way of a ‘national rural parkway’—a destination and recreational road that passes through a variety of scenic ridge, mountainside, and pastoral farm landscapes”; “conserve the scenery and preserve the natural and cultural resources of the parkway’s designed and natural areas”; “provide for public enjoyment and understanding of the natural resources and cultural heritage of the central and southern Appalachian Mountains”; and “provide opportunities for high quality scenic and recreational experiences along the parkway and in the corridor through which it passes.” The Blue Ridge Parkway Organic Act then forbids NPS from authorizing any right-of-way that is not consistent with those parkway purposes. See 16 U.S.C. §§ 460a-3, 460a-8. Thus, the right-of-way permit in this case would violate statutory requirements if not accompanied by a valid agency determination that the pipeline is not inconsistent with the Parkway’s scenic value and the public’s enjoyment thereof. ”

***
“Having concluded that both FWS and NPS erred in issuing their respective authorizations, we turn to the final question of remedy. Respondents argue that this Court lacks authority to vacate the agency actions under the Natural Gas Act. However, Respondents’ position is contrary to the plain text of the Natural Gas Act. The judicial review provision at issue provides, If the Court finds that such order or action is inconsistent with the Federal law governing such permit and would prevent the construction, expansion, or operation of the facility subject to section 717b of this title or section 717f of this title, the Court shall remand the proceeding to the agency to take appropriate action consistent with the order of the Court.

Because FWS and NPS have both granted authorizations in contravention of their respective statutory requirements, we conclude that the correct remedy is to vacate the ITS and the right-of-way permit, respectively.”

According to Reuters news coverage, Dominion’s Aaron Ruby says, “We believe the court’s concerns can be promptly addressed … without causing unnecessary delay.”

Court Upholds VA Water Quality Review for MVP

The U.S. Court of Appeals for the 4th Circuit in Richmond has upheld Virginia’s much-criticized water quality review for Mountain Valley Pipeline. According to press coverage of the decision in the Roanoke Times and the Virginia Mercury, “The panel of judges rejected arguments from the Sierra Club and other organizations that the State Water Control Board incorrectly found there was a ‘reasonable assurance’ that state water quality standards would be upheld when it issued a certification under the federal Clean Water Act for the project.” The ruling applies to the 500 or more waterbody crossings on the MVP route in Southwest Virginia.

“The construction of the project was exactly that, a large construction project, and the State Agencies very reasonably undertook to protect their waters with the ‘tried and true’ methods developed for just this purpose,” Judge William Traxler wrote for a three-judge panel. “We see no purpose we would serve by stepping in and second-guessing the analytical methods Virginia deemed appropriate to provide it with reasonable assurance that its water quality would be protected,” the 47-page opinion stated.

“We are disappointed in today’s ruling,” the conservation group Wild Virginia said in a statement. “The court relied in large part on the state’s assurances that the requirements in the certification and the enforcement of those requirements would uphold our water quality standards. The facts on the ground in the MVP construction areas in Virginia show all too clearly that those assurances were untrue and unsupportable.”

To date, Virginia’s DEQ has issued six notices of violation against MVP, finding that measures to control muddy runoff were inadequate at construction sites in Giles, Craig, Montgomery, Roanoke, Franklin and Pittsylvania counties, and five similar notices of violation have been issued in West Virginia.

Read the full 47-page opinion here.