WV-DEP May Have Messed Over 401 Certification for MVP

by Duane Nichols on August 27, 2017

Support: Appalachian Mountain Advocates

WV DEP ignored water quality in MVP permit, court filing argues

From an Article by Ken Ward, Jr., Charleston Gazette, August 16, 2017

WV Department of Environmental Protection Secretary Austin Caperton and his staff ignored serious threats to water quality when they approved a West Virginia permit for the Mountain Valley Pipeline, lawyers for environmental groups and citizen organizations say in a new legal brief filed this week.

WV-DEP officials approved a water quality certification for the MVP project despite not having fully reviewed its potential to degrade streams, failing to consider the water pollution effects from construction in areas upland from streams and not responding to an avalanche of public comments questioning the pipeline, the groups say.

“Notwithstanding the clear and present threat to water quality from construction of the pipeline in the steep mountains of West Virginia, [the] WVDEP failed to adequately consider that threat,” wrote Derek Teaney, one of the Appalachian Mountain Advocates lawyers representing the Sierra Club, the West Virginia Rivers Coalition and other groups.

Tuesday evening, citizen group lawyers filed an 82-page brief arguing to outline their legal challenge of a Clean Water Act certification that Caperton issued to approve the MVP, a natural gas pipeline proposed to run more than 300 miles from the Marcellus Shale fields of Wetzel County, West Virginia, to Pittsylvania County, Virginia.

In West Virginia, the pipeline corridor is nearly 200 miles long and would require nearly 150 miles of access roads. Construction would require 631 stream crossings and 424 wetlands crossings. Construction involves a 125-foot-wide right of way. Operation requires a permanent 50-foot right of way. The pipeline would “disturb about 4,189 acres of soils that are classified as having the potential for severe water erosion,” the lawyers note. More than 150 miles of the pipeline’s route through West Virginia is “considered to have a high incidence of and high susceptibility to landslides.”

Caperton, a former coal executive and energy consultant, approved the pipeline permit, issuing a news release that pointed reporters to the developer’s website for “information about the potential economic benefit” of the pipeline. Caperton then turned down a request that he hold an administrative appeal hearing, announcing the move in a two-paragraph letter that did not explain any reason for the action.

The state permit in question is a certification under Section 401 of the Clean Water Act that the pipeline activity will not violate the state’s water quality standards or stream designated uses. Citizen groups have appealed Caperton’s actions to the 4th U.S. Circuit Court of Appeals, in Richmond, Virginia.

Among other things, the citizen groups note that WV-DEP staffers received 2,400 pages of comments — and held public hearings that produced 150 pages of transcripts — but “issued a scant seven-page letter in response,” a reaction of such “surprising brevity” as to qualify as “arbitrary and capricious,” a legal standard for the court to overturn the state agency.

The citizen groups argue that the DEP’s review of the pipeline “myopically focused” on certifying the water quality compliance only of “dredge-and-fill” construction work that actually took place in streams and was covered by a U.S. Army Corps of Engineers permit. The WV-DEP ignored other potential effects of polluted runoff from the pipeline right of way during construction and operation, failing to also certify as water-quality compliant a separate federal certificate that MVP is seeking from the Federal Energy Regulatory Commission.

The WV-DEP also certified the pipeline despite agency records “replete with evidence that industry-standard erosion and sediment control practices [for pipeline construction] had failed spectacularly in the Appalachian region in recent history,” the citizen group lawyers told the 4th Circuit.

Lawyers for the WV-DEP are to respond to the citizen group filing by September 14, and the pipeline developers, who intervened in the case, have asked for a deadline of October 5. The 4th Circuit has not yet set a date for an oral argument.

The MVP project also faces a lawsuit in U.S. District Court in Roanoke, Virginia, that seeks to block FERC from issuing a federal permit that would give pipeline developers the ability to use eminent domain to condemn property for construction.

Recent confirmation actions by the U.S. Senate filled two vacant FERC seats, giving the commission a quorum to consider issues like the MVP permit. Still, FERC lawyers asked for and received an additional two weeks, until September 14, to file a response in that case. Lawyers for MVP have filed a motion seeking to have that case thrown out.

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John Hurdle September 1, 2017 at 3:34 pm

PA-DEP issues violation to Sunoco for another spill of drilling fluid

From an Article by John Hurdle, NPR StateImpact Penna., August30, 2017

A sign marks a water crossing on land in Huntingdon County where Sunoco wants to build the Mariner East 2 pipeline. DEP issued a Notice of Violation for a drilling mud spill that occurred last week in Dauphin County.

Pennsylvania officials issued a Notice of Violation to Sunoco Pipeline on Wednesday following another spill of drilling fluid, this time into the Susquehanna River at a Mariner East 2 pipeline site in Dauphin County.

The Department of Environmental Protection said the spill was about 50 gallons of bentonite, non-toxic drilling fluid, and was inspected by DEP officials on Aug. 24. It occured in the same place as a much larger spill, of 495 gallons, about a week earlier. The material that spilled in the earlier incident was never recovered, the DEP said.

Failure to fix the first spill “allowed an unauthorized discharge of industrial waste to remain in the Susquehanna River while active drilling continued,” the Notice of Violation said.

The latest spill, in Lower Swatara Township, comes about two weeks after Sunoco agreed to a wide range of new conditions regulating horizontal directional drilling (HDD) during its construction of the pipeline, under a settlement agreement with three environmental groups.

The agreement, approved by a Pennsylvania judge at the Environmental Hearing Board, requires Sunoco to review the geology at drilling sites, to give nearby homeowners more notice of drilling plans, and to offer to test their water before, during and after drilling.

The agreement followed dozens of spills along the cross-state pipeline route during the last few months, prompting Judge Bernard Labuskes to temporarily halt the drilling, which has now restarted. Some homeowners experienced cloudy water in their private wells after aquifers were punctured by the drilling.

It wasn’t immediately clear whether the latest spill violated the settlement agreement.

Neil Shader, a spokesman for the DEP, said the Dauphin County operation was HDD but was not covered by the agreement.

But Alex Bomstein, an attorney for the Clean Air Council, one of the environmental groups that challenged Sunoco at the Environmental Hearing Board, said the agreement covered HDD throughout the 350-mile route.

“The agreement changed the plans by which the pipeline is constructed, and that applies to all locations,” Bomstein said.

Under the agreement, drilling can only resume at a spill site once the spill – officially termed an “inadvertent release” – is contained and recovered, Bomstein said. If there are two or more spills at a HDD location, drilling cannot restart until approved by the DEP, according to the agreement.

“It appears to violate the settlement agreement but beyond that we just don’t have all the facts,” Bomstein said.

Bomstein said the DEP’s action was the first notice of violation for HDD that he had seen since the settlement agreement was approved by the judge on Aug. 9. At that point, there had been 90 drilling mud spills at 42 distinct locations across the state.

The new spill violates the Clean Streams Law and the Dam Safety and Encroachments Act, the DEP said.

Sunoco spokesman Jeff Shields did not respond to requests for comment.

Mariner East 2, costing more than $2.5 billion, has been under construction since February. When complete, it will carry propane, ethane and butane from the Marcellus Shale of southwestern Pennsylvania to an export terminal at Marcus Hook near Philadelphia. Scheduled completion of the project has been pushed back to the fourth quarter from the third quarter. 

See also: http://www.FrackCheckWV.net


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