Former water board member: Lawsuit over pipeline violations is also an indictment of DEQ’s regulatory approach

December 13, 2018 6:01 am

Muddy water from the Mountain Valley Pipeline construction site flows over control measures and into Teels Creek in Franklin County. (Photo taken June 13, 2018, by Dave Werner)

After months of citizen complaints about deleterious impacts to waters of the commonwealth from Mountain Valley Pipeline construction, many cheered when Virginia Attorney General Mark Herring announced that an enforcement action had been filed last week.

Upon closer inspection, however, the complaint filed by Herring is as much a critique of Department of Environmental Quality Director David Paylor’s program to prevent the degradation of state waters as it is a catalog of violations of state laws designed to protect water quality.

In spite of concerns raised by tens of thousands of citizens last year, the State Water Control Board, on the recommendation and testimony of the DEQ staff, issued a water quality certification that was based on a “reasonable assurance” that the waters of the commonwealth would not be degraded by the upland construction of the pipeline.

As a member of the water board at that time, I voted against the certification because there were significant unresolved questions as to whether the construction through steep slopes and karst topography could be completed without impacts to water quality.

There were also questions about whether erosion and sediment control plans were sufficient to address significant rain events and saturated soil conditions.

Along with promising the best and most stringent stormwater management and sediment control from a technical standpoint, DEQ also promised that in the event that weather situations changed and rapid adjustments needed to be made, the agency had the full authority to direct additional stormwater management measures as well as to issue a stop work order to prevent imminent degradation of the commonwealth’s surface water resources.

The attorney general’s complaint tells a different story, one of serial noncompliance by MVP that was noted by the DEQ inspection contractor beginning in early June.

The complaint alleges 180 instances where MVP failed to repair ineffective erosion and sediment control measures within 24 hours of identification; ongoing failures which were noted to be one to 48 days past due.

In other words, 180 instances where promises made were not kept — averaging one instance per day, every day, for six months.

One of many steep grades the Mountain Valley Pipeline will traverse along its route through Virginia. (Ned Oliver/Virginia Mercury – July 26, 2018)

Also notable is that from early June through Nov. 15, the complaint alleges 42 instances where sediment was deposited off the construction right of way, sometimes directly into waters of the commonwealth, as a result of erosion and sediment control measures being improperly installed or maintained.

Again, a situation that DEQ promised would be avoided under the water quality certification.

From early June to Nov. 15, the complaint alleges 58 instances of inadequate stabilization of soil at sites where vegetation had been removed (bare soils are at particularly high risk of eroding during heavy rain).

This is an average of about 10 per month, or once every three days.

In addition to these violations reported by DEQ’s contracted inspectors, DEQ’s own inspections led to violations found on May 21, 23, 24, 31; June 6, 13, 26, 27; August 29; Sept. 5, 19, 20, 25; and Oct. 3, 16, 17.

Alleged violations included failure to install stormwater management controls as indicated on MVP’s own plans, crossing four wetlands by construction vehicles without any temporary access road and instances where the access roads were not properly maintained.

After reading the complaint, there should be no doubt about the validity of the concerns raised by the public about water quality impacts from fracked gas pipeline construction projects and the associated water quality certifications issued by the State Water Control Board.

What the complaint doesn’t tell us, however, is how the DEQ allowed so many violations to occur unabated, for months and months, or how major erosion and sediment control structures failed in spite of pre-approved plans.

The complaint doesn’t tell us if DEQ has enough manpower to adequately monitor a project of this size, nor whether DEQ has the expertise to evaluate the engineering of stormwater management on steep slopes or on certain soil types.

Is the DEQ allowing too many variances in construction length, such that more land is denuded than can be managed through the stormwater controls? Or were the plans themselves insufficient for heavy rain?

And why, in the face of so many systemic failures in complying with the water quality certification, didn’t DEQ issue a stop work order to ensure that violations were addressed to prevent any degradation of water quality?

Having faced a justifiably irate and frustrated public repeatedly as a State Water Control Board member over the past two years, I hope Gov. Northam will finally appreciate the validity of public concerns for the waters of the commonwealth.

The hard questions must be asked about whether DEQ is prepared to adequately protect state waters for the upcoming Atlantic Coast Pipeline project, a project of more than double the length of the MVP and with a bigger Virginia footprint.

What will the DEQ do differently to ensure that measures are in place to prevent water quality degradation, rather than to merely record the existence of violations so monetary recompense can be sought at a later date?

Does DEQ need more tools for monitoring a project of such great length, such as the use of drones? Does the stop work order legislation as currently worded provide a strong enough tool for DEQ to protect Virginia’s waters?

Does DEQ need additional funds for more staffing per mile for these types of projects? Should more robust contingency planning be imposed, so that construction sites are secured with adequate erosion control mechanisms in advance of forecasted large rain events?

Perhaps if Gov. Northam would consider these questions, he could not only help to regain public trust in the DEQ, but could also make Virginia the leader in protecting water quality during large pipeline projects, a result that would be applauded by pipeline proponents and opponents alike.

The views of op-ed contributors are their own and do not necessarily reflect those of the Virginia Mercury.

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Roberta Kellam
Roberta Kellam

Roberta Kellam recently served two terms on the Virginia State Water Control Board and previously was an instructor of environmental law and policy at the University at Buffalo Law School and in private practice in upstate New York. She lives in Northampton County.