Hanover NAACP asks for temporary halt to Wegmans distribution center work

Critics contend Virginia regulators shouldn’t have issued permit

By: - December 17, 2021 12:02 am

Opponents of a water permit for a Wegmans distribution center in Hanover at an April 30 news conference announcing a lawsuit against the Virginia Department of Environmental Quality and the State Water Control Board. (Sarah Vogelsong/Virginia Mercury)

As the fight over a plan to build a massive Wegmans distribution center on a Hanover site that contains large swathes of wetlands remains alive in the courts, the county branch of the NAACP is asking a Richmond judge to temporarily halt some types of construction work. 

“Why can’t we push the pause button so the court can do a thorough review?” Brian Buniva, an attorney representing the Hanover NAACP, asked Richmond Circuit Court Judge W. Reilly Marchant in a hearing Wednesday. 

Lawyers with the Virginia Office of the Attorney General and Wegmans, however, pushed back, maintaining that an “exhaustive review process” by state and federal officials has already occurred and that there’s no evidence to show the courts need to get involved with decisions made by agencies and the State Water Control Board. 

“There are huge costs to delaying the project,” said Wegmans attorney Eugene Mathews. An affidavit submitted to the court by the company puts those losses at $647,718 for every week of delay. 

Nevertheless, the Hanover NAACP maintains that if the project forges on before a broader lawsuit about whether state and federal reviews were properly conducted can be settled, the community will suffer “immediate, unavoidable and irreparable injury.”

Buniva told the court Wednesday that while the Hanover NAACP had asked the judge in filings to halt “all construction activities” on the site until the conclusion of the lawsuit, they were willing to narrow that request to only those activities that would impact the wetlands. 

“The only thing I’m asking you to do is to let these wetlands survive,” he told Marchant. 

Following its receipt of state and federal permits, Wegmans recently began work on a 1.7 million square foot distribution center located roughly two miles from Interstate 95 in Hanover, north of Richmond. The facility will be Wegmans’ third, intended to relieve burdens on existing distribution centers in Pennsylvania and New York and allow it to expand its southeastern operations.

But while Virginia officials actively courted the company — offering $2.35 million in grant funds in return for a promise to invest at least $175 million in the facility and create and maintain at least 700 new jobs — the plans sparked major local opposition

The objections spanned a wide range of issues, from concerns about noise and truck traffic on the narrow surrounding roads to local insistence that there are graves on the site

Two, though, came to the forefront of the debate and are now key points in the lawsuit filed by the Hanover NAACP against Virginia and the State Water Control Board this April over the state’s decision to grant Wegmans a permit allowing it to disturb wetlands. 

The Wegmans facility will permanently destroy or alter almost 15 acres of nontidal wetlands on the 219-acre site. Wegmans and Virginia environmental officials say impacts will be confined to the site, but opponents insist the project will cut off and harm wetlands beyond its footprint. 

They also contend the chosen site wasn’t the “least environmentally damaging practicable alternative,” a designation state officials had to accept to grant the water permit and that ultimately split State Water Control Board members 4-3 in their decision. 

On that point, the Hanover NAACP has garnered an influential supporter: former DEQ Director Robert Burnley submitted an affidavit to the court last month saying DEQ’s analyses of the Wegmans project hadn’t met state permit requirements and “the record clearly shows less environmentally damaging practicable alternatives.” 

The other primary objection concerned environmental justice, the idea that no group should bear a disproportionate share of negative environmental impacts. Wegmans’ chosen site adjoins Brown Grove, a historically Black community founded by freedpeople after the Civil War and still populated by their descendants. For many Brown Grove residents, the massive Wegmans facility is the latest in a long string of land use decisions that they say have unfairly impacted the community’s quality of life, health and safety. 

Furthermore, they have argued, despite 2020 legislation making the promotion of environmental justice both Virginia and Department of Environmental Quality policy, the state failed to meaningfully involve the community in its February decision to grant Wegmans a water permit. 

Instead, Buniva told the court Wednesday, DEQ “didn’t do anything for the Brown Grove community that they didn’t do for the general public.”

The Hanover NAACP has argued that both issues raise concerns about errors of law substantial enough for the court to not only examine them but to halt construction. 

Brown Grove Deacon Kenneth Spurlock speaks at an April 30 press conference announcing a lawsuit against Virginia DEQ and State Water Control Board over a water permit for a Wegmans distribution center in Hanover. (Sarah Vogelsong/Virginia Mercury)

The state and Wegmans vehemently disagree. Attorneys for both argued Wednesday and in court filings that alternative sites were thoroughly vetted and that DEQ went above and beyond expectations for seeking public involvement in the water board’s decision. Fourteen pages of a fact sheet submitted to the board detailed alternative sites and facility configurations, they pointed out, and discussion of those alternatives occurred during a 10-hour meeting on the decision in February. 

Outreach was also extensive, they claimed. Two public hearings were held on the permit, with 465 comments sent to DEQ. The agency also arranged a phone call with members of the Brown Grove community and voluntarily published additional notices seeking public comment in local papers. 

“There is substantial evidence in the record to support the board’s decision,” Assistant Attorney General David Grandis wrote in one filing. And legally, because the law requires courts to show a high level of deference to agency decisions, they can only overturn those decisions “when, on consideration of the entire record, a reasonable mind would necessarily reach a different conclusion.” 

Marchant made no decision on the injunction Wednesday but emphasized the difficulty of ruling on a highly technical area of law as a circuit court judge “who hears a murder case one day and a robbery the next.” 

“It’s very difficult for a court to supplant [an agency’s] judgment,” he said.

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Sarah Vogelsong
Sarah Vogelsong

Sarah is Editor-in-Chief of the Mercury and previously its environment and energy reporter. She has worked for multiple Virginia and regional publications, including Chesapeake Bay Journal, The Progress-Index and The Caroline Progress. Her reporting has won awards from groups such as the Society of Environmental Journalists and Virginia Press Association, and she is an alumna of the Columbia Energy Journalism Initiative and Metcalf Institute Science Immersion Workshop for Journalists.