2015-05-21 / Top News

Group focused on protecting water from pipeline

Where the river runs … PERSPECTIVE

Columbia Gas of Virginia upgraded a gas pipeline last year in Giles County. The company used its own inspectors, but the U.S. Forest Service and Department of Environmental Quality were charged with overseeing compliance with erosion and sediment control laws. (Photo courtesy the Dominion Pipeline Monitoring Coalition) Columbia Gas of Virginia upgraded a gas pipeline last year in Giles County. The company used its own inspectors, but the U.S. Forest Service and Department of Environmental Quality were charged with overseeing compliance with erosion and sediment control laws. (Photo courtesy the Dominion Pipeline Monitoring Coalition) MONTEREY — It’s all about the water — the fundamental life block for all living creatures.

Those watching the Atlantic Coast Pipeline project evolve have repeatedly warned industrial construction and earth-moving of this magnitude has could seriously degrade water supplies in Highland County, and beyond.

It could not only affect human drinking water from wells and springs, but could pollute the waters of this highly sensitive ecological area, home to hundreds of species, and the water needed for local farmers’ livestock.

This week, The Recorder examined Virginia’s regulations with regard to water protection, the bulk of which fall under the purview of the Department of Environmental Quality.

Fencing failed to keep earth and debris from spilling over into the forest during construction of Columbia Gas’ pipeline project in Giles. (Photos\ courtesy the Dominion Pipeline Monitoring Coalition) Fencing failed to keep earth and debris from spilling over into the forest during construction of Columbia Gas’ pipeline project in Giles. (Photos\ courtesy the Dominion Pipeline Monitoring Coalition) Last week, several water quality experts associated with the Dominion Pipeline Monitoring Coalition met with DEQ officials with questions about the agency’s role with regard to Dominion’s pipeline, and they left Richmond more concerned than ever — DEQ told them it simply does not have the resources to effectively and closely monitor water quality when pipeline construction is under way.

DEQ officials told The Recorder the same thing this week: it will review the project as one entire unit, but it does not have the staff to look specifically at multiple points along the pipeline’s path.

Rough material, rock and sediment was not adequately contained at this project last year, and made its way onto private property. The Department of Environmental Quality never inspected the work during construction. (Photo courtesy the Dominion Pipeline Monitoring Coalition) Rough material, rock and sediment was not adequately contained at this project last year, and made its way onto private property. The Department of Environmental Quality never inspected the work during construction. (Photo courtesy the Dominion Pipeline Monitoring Coalition) Dominion does plan, however, to develop a specific Erosion and Sediment Control plan for the ACP, addressing every foot along the route.

Spokesman Jim Norvelle explained, “The plan will be developed during the Federal Energy Regulatory Commission’s National Environmental Policy Act (NEPA) analysis, which will result in a Draft Environmental Impact Statement.”

He also confirmed DEQ will not require a plan for its purposes. “The DEQ has informed Dominion that it intends to exempt the company from filing an E&S plan with the state under the oil and gas exemption in the U.S. Natural Gas Act for transmission pipelines and their associated facilities, as a matter of consistency,” Norvelle said. “The DEQ said it had used the exemption for other pipeline projects in Virginia.”

What are the laws?

First, some background. Virginia has an Erosion and Sediment Control Law. It outlines the regulations required for almost every kind of construction that could affect water quality.

The law describes a “Virginia Erosion and Sediment Control Program” — a program approved by the State Water Control board to keep in check the erosion and runoff associated with land disturbance that could degrade state waterways. The program outlines methods to avoid damage, and ways of inspecting and controlling those methods during activity that moves earth around.

There are also “Virginia Erosion and Sediment Control Authorities.” These are authorities approved by the board to oversee an Erosion and Sediment Control (ESC) program. They can be a state agency, such as the DEQ, but they can also be a county or town, or a federal entity. They can also be utility companies like Dominion.

Permits different for utilities

For “linear projects” (think: railroad lines, electric power lines, and all manner of pipelines), there is a special exception to ESC plans.

Under the law, utility companies that build such projects, like a gas transmission line, can submit “Annual Standards and Specifications” to the state. This document describes a company’s general erosion and sediment control measures for all its projects, and it is supposed to be submitted annually to the state for review.

Generally, this Annual S&S plan helps utilities avoid creating site-specific ESC plans for every locality or project segment along a route, as these projects can cross multiple localities and types of terrain.

As DEQ spokesman Bill Hayden explained, “We are not able to break a linear project into smaller pieces; we simply couldn’t permit every few hundred feet, or even every mile” of such projects.

Dominion has submitted Annual S&S plans over the years; the most recently revised version was created in November 2012, and approved by the Department of Conservation and Recreation in April 2013.

After that, however, Virginia moved responsibility of erosion and sediment control from the DCR to the DEQ. When the DEQ took over, it re-approved Dominion’s same standards in 2014, and then extended approval through July 1 of this year.

One of the major concerns raised by the Dominion Pipeline Monitoring Coalition, is that the Annual S&S documents first approved for 2013 do not reflect recent changes in the ESC and stormwater management laws and regulations.

Rick Webb of Mustoe, spokesman for the coalition, explained, for example, Virginia’s new laws call for calculating runoff conditions at a site after construction. Dominion’s Annual S&S plan does not include those calculations, as it was drafted prior to the change.

Hayden said DEQ has not yet received a new Annual S&S plan from Dominion. However, he noted, for Dominion or any other utility with such plans, “if someone requests it, DEQ will grant an extension until the end of the year as a matter of routine.”

Once DEQ has a plan, the agency has 60 days to review it. “But it’s all up in the air right now,” Hayden said.

Webb said DEQ officials told the coalition they have been holding meetings trying to determine what to do with the plans since they are no longer compliant with new regulations. “They’ll probably just extend them again,” Webb said.

Dominion’s Norvelle confirmed DEQ would extend standards for all who request it, and “Dominion is currently seeking extension,” he said.

What are the standards?

Dominion’s Annual S&S document is 110 pages long, and identifies the range of measures the company might use to control damage to waterways — from silt fences to trench breakers, and drain tiles to seeding methods, depending on the circumstances.

It describes the internal inspection and management process, too.

For each project, Dominion explains in the plan, it will assign an inspection staff “suitable for the size of the project.” This staff is headed by a construction supervisor.

One of the inspectors will be appointed the “environmental coordinator.” That person is responsible for understanding the Annual S&S plan, site conditions, and permit conditions. He or she reviews how the plan is implemented, and is to “resolve apparent conflicts between permits and this plan, and coordinate with the construction supervisor about additional measures which may be needed to address erosion and sedimentation.”

For any project larger than 10,000 square feet in area, there will be a “Responsible Land Disturber” who holds an RLD certificate. This RLD, Dominion explains, “will fulfill the FERC inspector’s role.” And, the RLD will have “peer status” with the other inspectors, and the “authority to stop activities that violate the environmental conditions of the FERC certificate or other authorizations and order corrective action.”

The Annual S&S plan includes a long list of the RLD’s responsibilities.

For projects where more than 500 feet of trenching will be needed, Dominion employs a state-certified inspector to cover compliance.

Dominion’s Annual S&S makes specific reference to some Virginia laws, but more often seems to follow the more general regulations created by the Federal Energy Regulatory Commission.

FERC is the agency reviewing Dominion’s ACP, and DEQ will be responsible for Virginia’s input as FERC does its review of the project. Webb said DEQ officials told the coalition that DEQ would collect and summarize comments from several other state natural resource agencies and give that information to FERC.

The Annual S&S plan outlines all the ways Dominion can prevent water quality degradation and stabilize soil to prevent runoff during and after construction.

It also states that sensitive areas such as wetlands, water body crossings or residential developments, or areas that require specialized construction like boring or directional drilling, will be treated as separate construction projects.

In at least one case, a site-specific Erosion and Sediment Control plan is explicitly required — for directional drilling under stream crossings, which can have a direct effect on waterways.

So, what’s the problem?

With such a detailed set of standards for ESC, why should anyone be concerned about the ACP’s effects on water quality in Highland, or anywhere else?

The Dominion Pipeline Monitoring Coalition will tell you: it’s because DEQ does not inspect these projects, and the Annual Standards and Specifications do not explain how Dominion will handle construction in this particular area, at specific places, such as steep mountainsides and over karst, where the effects could be much more serious.

The DPMC would like to see DEQ require Dominion to submit site-specific ESC plans for this project, but it’s not convinced DEQ will do that.

Under Virginia law, Annual S&S documents serve as the ESC plans for projects like pipelines, and in this case, Dominion would serve as its own ESC “authority,” with its own reviewers and inspectors.

DEQ can require specific ESC plans, however. Under the law, it states, “The submission of annual standards and specifications to the department does not eliminate the need where applicable for a project specific Erosion and Sediment Control Plan.”

As members of DPMC say, “where applicable” is the key phrase.

So far, they note, DEQ has not required more specific ESC plans for utilities operating under Annual S&S plans. DEQ officials told them it wasn’t practical.

DEQ does not have the staff or resources to inspect projects like this, they said, so there was little point in requiring specific ESC plans they cannot inspect or review.

DEQ’s Hayden had a somewhat different perspective; he told The Recorder it’s just too early to say whether DEQ will ask for specific ESC plans for this project. DEQ has not yet received Dominion’s resubmission of its Annual S&S, and has not received any applications for ESC plans or other permits.

Hayden agreed, however, that DEQ is not equipped to apply further scrutiny, not just to Dominion’s ACP, but to any large, linear project operating under Annual S&S plans. “Breaking these projects into pieces,” he said, “would significantly increase the workload on our staff. We couldn’t handle it.”

Dominion has said, according to the company’s own timeline, it will apply for any needed permits by the end of the summer.

The concern from the DPMC, however, is that Dominion will not submit site-specific erosion and sediment control plans, and local governments and citizens affected will not have an opportunity to review such plans before construction, or during and after.

Hayden added, however, that anything is possible and DEQ has not yet determined what it will do with regard to the ACP project. “It depends on when we get a plan submittal,” he said. “Right now, we have no timetable.”

Is it possible DEQ might inspect this project? “Yes, it’s possible,” Hayden said. “We really can’t predict that, but we would anticipate some inspections.”

The meeting with DEQ

DPMC representatives traveled to Richmond May 12; they met with DEQ director of operations James Golden, Fred Cunningham of the office of VPDES permits, Andrew Hammond and Larry Gavin of the office of storm water management, and Bettina Sullivan of the environmental impact review program.

Pipeline coalition members included the organization’s coordinator, Webb, a water quality expert; Kirk Bowers of the Virginia Sierra Club; Malcolm Cameron, DPMC’s slope stability analysis coordinator; Pam Dodds, consulting hydrologist with Laurel Mountain Preservation Association; and Arthur Dodds, cartographer for the association.

DPMC’s take-away from the meeting was that DEQ does not have the resources to run its regulatory program in strict adherence with requirements, “a constant theme and explanation for shortcomings or lack of rigor,” Webb said.

Who’s watching?

One of the biggest concerns, according to the DPMC, is that without specific ESC plans, localities and citizens in Virginia affected by linear projects have no opportunity to review a plan before construction begins, nor gain access to the reviews and inspection reports that follow during construction.

“There is no access to erosion and sediment control and storm water management plans or inspection reports, and thus no real oversight by the DEQ, localities, or the public,” Webb explained.

This is because companies using Annual S&S hire their own plan reviewers and inspectors; the plans are typically kept on site at projects, in construction trailers, but not made public, nor given to DEQ. And DEQ staff does not typically go to construction sites to review them, either.

“The DEQ position is that it cannot justify asking for the plans, given that it has no staff to review them,” Webb said. “DEQ instead relies on construction companyhired plan reviewers.”

Hayden said he believed Dominion’s inspector would be required to turn over inspection reports to the DEQ, and thus, citizens or local governments would have access to them as public documents. “DEQ will have them,” he said.

Webb said, however, he doesn’t think that’s true. In fact, the coalition examined a smaller Columbia Gas project in Giles County and found DEQ not only did not have the inspector’s reports, the agency didn’t inspect the project independently at all. (See sidebar, ‘Different project’).

Gaining public access to a specific ESC plan for the ACP is one of the coalition’s concerns, but more importantly, the DPMC worries about water quality protection when the fox seems to be guarding the hen house.

“It is to the advantage of pipeline construction companies to operate under Annual S&S approval versus the Erosion and Sediment Control program that applies to other companies because review and oversight are minimal,” Webb said.

He pointed out that:

• Such companies do not have to apply for plan approval from local governments;

• No one other than company staff or contractors reviews site-specific ESC plans;

• No one other than company staff inspects the projects; and

• Local governments have no authority to inspect the projects for compliance.

• DEQ has the authority to require specific ESC plans and inspect projects but doesn’t due to lack of staff.

DEQ inspections are entirely complaintdriven; in other words, DEQ doesn’t look at these projects until someone calls to tell them something is wrong.

“There is no actual oversight and enforcement of Virginia’s ESC and stormwater management requirements for pipeline construction,” Webb said. “Dominion spokesmen have repeatedly stated that pipeline construction is highly regulated with respect to water resources protection, and our governor has promised that the ACP will not cause environmental harm. But it’s essentially a voluntary compliance system.”

Webb said the coalition has little reason to expect that pipeline companies, on their own, without independent oversight, will strictly comply with water-related laws and regulations.

“There is always pressure to cut corners,” he said, “and pipeline companies simply cite problems with subcontractors when things go wrong. No one in charge is willing to take actual responsibility.”

He points to Dominion’s recent water violations in West Virginia and to other pipeline projects the coalition has studied. He says the coalition has strategies for dealing with what he calls a “broken regulatory system.” (See sidebar, ‘Coalition has a strategy’).

Dominion, for its part, says the ACP project will be in compliance with all state regulations. There will be an Erosion and Sediment Control plan for the entire project in accordance with FERC standards, Norvelle said. In addition, the plan will meet the requirements of the Virginia Standards and Specifications that are approved by DEQ, he said.

“Construction will be inspected for compliance with the plan by FERC personnel, inspectors under contract to FERC, and Dominion inspectors. The FERC contract inspectors remain on the job at all times,” Norvelle explained. “The plan will address every foot of the project.”

“We’ll have to see what that means,” Webb said, “and I’m pretty skeptical.”

The fact that DEQ would simply exempt Dominion, or any other company, from complying with state laws doesn’t sit well with the coalition.

“Under what law do we just not require state compliance because it seems to be compliant with federal law?” Webb asks. “I seriously question the right of DEQ to simply exempt any company from state law just because it says it’s following federal law. We’ll have to see what that means, too … It borders on incoherent. If there’s any precedent for that, it needs to be challenged … We’re talking about state law; the DEQ is responsible, and fundamentally, we still want access to the plans and I don’t think we’ll see them in any context under a National Environmental Policy Act review. Maybe it should; maybe it will. But we’ll see.”

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