Category Archives: Virginia government

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

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.

Northam Dismisses Letter from EJAC

FOR IMMEDIATE RELEASE by the Global Justice Ecology Project (GJEP), 8/17/2018
Contact: (314) 210-1322  steve@globaljusticeecology.org

VA Governor Northam Dismisses Letter from His Environmental Justice Advisory Council Calling to Stay Pipeline Permits

In response to a letter from his own advisory committee calling for a halt to the Atlantic Coast Pipeline due in part to its disproportional impact on poor and minority communities, the assistant for Governor Northam’s press secretary, Marissa Astor, told Global Justice Ecology Project (GJEP) that it is the Governor’s position that the letter is only a draft, and not final until voted upon by the committee “in the coming weeks.”

The letter, obtained by GJEP, was the subject of comment by various members of the Governor’s committee in a GJEP press release on 8/16. The committee is clear that the letter is a finished piece of work deserving of action by the governor.

A member of the Governor’s Advisory Council, Dr Mary Finley-Brook, told GJEP in an email, “I am surprised by the Governor’s press staff questioning the finality of the letter after we worked for 3 months to achieve consensus. The Council has voted on this letter more than once already and members have repeatedly communicated an urgent need to address environmental justice concerns surrounding the ACP and MVP in a timely fashion given the pre-construction and permitting processes currently occurring.

“I was not aware of any plans to call for a vote or any further discussion of this pipeline letter. The public agenda for the advisory council’s next meeting on August 28th, makes no mention of discussion or vote on this matter. As a council member, my understanding was that we were done with this letter and that it was finalized and would be given to the governor.”

The Executive Director of Global Justice Ecology Project, Anne Petermann, said “For the Governor to have such an insipid response to such an important call to action is disturbing. It seems that Northam is hiding behind arcane machinations in an attempt to avoid uncomfortable realities of this project and his own committee’s recommendation to address them.”

PDF of Council agenda for their August 28, 2018, meeting.

ACEJ Calls for Stay on All Further ACP and MVP Permits

In a letter on August 16, 2018, Governor Ralph Northam’s Advisory Council on Environmental Justice called for a stay on all further permits for the Atlantic Coast and Mountain Valley Pipelines. Blue Virginia reports that the Council recommended an Emergency Task Force on Environmental Justice in Gas Infrastructure to review and address the evidence it has found of “disproportionate impacts for people of color and for low-income populations due to gas infrastructure expansion.”

Dr. Mary Finley-Brook, a member of the council states that, “Given the evidence the Advisory Council cites in the letter, it is clear that if the Governor and state regulators are committed to environmental safety and justice they must put an immediate halt to Union Hill Compressor Station and ACP permitting until community risks and safety concerns can be addressed in a meaningful way.”

Read the letter from the Advisory Council on Environmental Justice here.

State Water Control Board Meeting on August 21

The Virginia State Water Control Board’s (SWCB) next regular meeting is scheduled for Tuesday, August 21, beginning at 9:30 am, at the Pocahontas Building, First Floor House Committee Room, 900 East Main Street, Richmond, VA 23219. The tentative meeting agenda includes the following items at the end of the meeting:

  • VII. Mountain Valley Pipeline/Atlantic Coast Pipeline Reports Nationwide Permit 12 Comment Period Update in Response to April 12 Requests from Board
  • VIII. Other Business Future Meetings (September 20 and December 13)
  • IX. Public Forum
  • ADJOURN

A summary of the more than 13,000 comments filed with the Virginia Department of Environmental Quality on the adequacy of the U.S. Army Corps of Engineers’ Nationwide Permit 12 for the ACP supposedly is being prepared by DEQ for the SWCB’s review and supposedly is to be made available to the public. At this writing, the DEQ summary is not yet available, although Wild Virginia and Dominion Pipeline Monitoring Coalition posted a summary on August 15, 2018.  We hope SWCB members have been studying that!  DPMC and Wild Virginia also posted the full set of comments on July 20, 2018, and the full set is finally available on the DEQ Web page.

In the Executive Summary of their summary document, Wild Virginia/DPMC state, “However, we were recently old by a DEQ official that new comments will not be accepted at the Board meeting and that any written comments must have been submitted 10 days before that meeting. This approach is clearly not designed to allow full and effective public participation and the Board should not accept it. DEQ’s failure to issue its summary in a reasonable period of time deprives citizens of any chance to reply, if the 10-day limit is enforced. We’ve been told further that citizens will not have the chance to speak at the upcoming Board meeting about these issues. This differs from the normal case, where the public is given an opportunity to review and comment upon the staff’s response to comments. We believe these decisions negate the principle of transparent and open government and that it is an outrageous approach for public servants to follow. We ask the Board to reject DEQ’s rulings and allow for public comments on August 21.”

A section of the Wild Virginia/DPMC document summarizes major substantive issues that have not been addressed by DEQ, including “crossings not identified in tables; waterbodies characterized incorrectly or incompletely; crossing method not specified; combined impacts from multiple crossings; antidegradation; trout and other sensitive species; impacts on Tier III waters; groundwater threats; variances; direct discharges from “uplands” areas; impacts from horizontal directional drilling and spills; impacts on designated and existing uses; temperature impacts; enforcement and compliance issues; and lack of historical information on effectiveness of Nationwide Permit 12.”

We wonder how the State Water Control Board will review all the comments and address all issues in the designated portion of their meeting.

Wild Virginia Releases Summary of Comments to SWCB


On August 15, 2018 Wild Virginia and Dominion Pipeline Monitoring Coalition released a summary of the more than 13,000 comments filed with the Virginia Department of Environmental Quality on the adequacy of the U.S. Army Corps of Engineers’ Nationwide Permit 12 for the Atlantic Coast and Mountain Valley Pipelines. The comment period opened on April 30, 2018, and was originally scheduled to close on 30 May. It was extended to June 15 after the DEQ Website was offline between May 22 and June 1. After obtaining the documents through a FOIA request, DPMC and Wild Virginia posted the full set of comments on July 20, 2018, well before DEQ posted the comments on their Web page.

The 104-page summary document is divided into a section for each pipeline, and within those two sections is divided by river basin and then by waterbody. A third section in the document discusses 15 major substantive issues, e.g. crossings specified incorrectly or incompletely, sensitive species, or groundwater threats.

Read the full document: “Summary of Public Comments to Virginia State Water Control Board on the Adequacy of NWP 12 to Ensure Compliance with State Standards