Facing another snag in a complex permitting process, the developers of the largest natural gas pipeline ever built in Southwest Virginia are pushing back.
In a Feb. 12 letter to state regulators, an attorney for the Mountain Valley Pipeline asked the State Water Control Board to discontinue a process it started last year that could lead to the revocation of a water quality certification for project, which has been cited repeatedly for violating environmental standards.
The water board is scheduled to meet Friday to discuss the details of a future revocation hearing.
“Mountain Valley accepts that this project has been, and continues to be, perhaps the most heavily scrutinized construction project in Virginia’s history,” the company said in a letter to David Paylor, director of the Virginia Department of Environmental Quality and executive secretary of the water board.
With so much scrutiny already, and with the project more than halfway done, it would serve little purpose to consider revoking the certification at this point, wrote Todd Normane, deputy general counsel for Equitrans Midstream Corp., an affiliated company in the joint venture.
And even if the board were to reverse its earlier approval, Normane wrote, Mountain Valley would still hold a valid license from the Federal Energy Regulatory Commission, the lead agency overseeing construction of the 303-mile pipeline through the two Virginias.
“Unilateral action by the board at this time cannot amend or invalidate that license or otherwise block construction,” his letter stated.
A spokeswoman for FERC declined to comment.
The letter from Mountain Valley is its first detailed response to the water board’s surprise move in December, when it voted 4-3 to hold a hearing on whether to revoke a certification it had issued for the project one year earlier.
On Friday, the board will reconvene for a special meeting at a Richmond hotel to discuss the details of when and how the process will unfold.
The meeting could reveal what impact Mountain Valley’s letter — which contains numerous legal and technical arguments spelled out over eight pages — will have on a board that has already changed directions.
Last August, when problems controlling erosion and sedimentation at pipeline construction sites were reaching a critical mass, the board voted 4-3 not to consider revoking its certification, opting instead to call for tougher enforcement by DEQ staff.
Then the board voted 4-3 in December to hold a hearing after all. The flip came after Gov. Ralph Northam filled two expired terms by appointing new members who favored a revocation hearing, replacing one who did and another who did not.
Both DEQ and Mountain Valley officials seemed caught off-guard by the vote. The matter was not listed on the board’s agenda and came late in the meeting on a motion made and seconded by the two new members, James Lofton and Paula Hill Jasinski.
The lack of prior notice “fails to adhere with the spirit, if not the letter, of the law in the function of regulatory bodies in Virginia and lacked the transparency to which we believe any business interest or economic development project is reasonably entitled,” Normane wrote in his letter.
After FERC green-lighted the project in October 2017, Mountain Valley sought certification by the water board to allow work in so-called “upland areas” of the pipeline’s route through Southwest Virginia. The state’s approval was closely linked to another permit, issued several weeks later by the U.S. Army Corps of Engineers, which covered streams and wetlands to be crossed by the 42-inch diameter pipe.
Tree-cutting began in February 2018, and according to Mountain Valley construction is now about 70 percent completed.
Changing the rules this late in the game by holding a revocation hearing, Normane wrote in his letter, would inject uncertainty for the $4.6 billion pipeline and “by extension, for the broader business climate in the Commonwealth.”
Pipeline proponents say transporting natural gas from Wetzel County, West Virginia, to connect with an existing pipeline in Pittsylvania County will increase the supply of a needed energy source, create new jobs and promote economic development along its path.
Opponents say the state must stop construction now, considering the widespread failures of erosion and sediment control measures that have occurred since the water board determined, as part of its December 2017 certification, that there was a “reasonable assurance” construction would not contaminate state waters.
A lawsuit filed last year by Attorney General Mark Herring, on behalf of DEQ and the water board, alleges more than 300 violations of state regulations meant to curb muddy runoff along a linear construction zone spanning six Virginia counties — Giles, Craig, Montgomery, Roanoke, Franklin and Pittsylvania.
In many cases, the lawsuit alleges, harmful sediment made its way into nearby streams.
Loss of the state’s authorization is not the only worry for Mountain Valley. Legal challenges filed by environmental groups last year led to the suspension of two federal permits, one for the pipeline to cross through the Jefferson National Forest and another for it to burrow under more than 500 streams and wetlands.
The company has said it plans to have those permits restored in time to complete construction by the end of this year.
Mountain Valley acknowledged in its letter the “alleged instances of non-compliance” raised by Herring’s lawsuit. While declining to discuss the details, Normane wrote that the litigation represented “yet another opportunity” for the company to work with state officials to correct any problems.
“Mountain Valley remains fully committed to working with the Commonwealth in good faith and with great diligence to maintain appropriate environmental measures for the project,” the letter stated.
That prompted pipeline opponents to fire off their own letter to the board.
“In truth, the evidence shows a systematic and continual pattern of flouting the law and causing harm as a consequence,” a letter from Wild Virginia and eight other environmental groups stated.
“When caught in violations, MVP sometimes responds to those individual occurrences but does not seek to find and fix the other locations where those same conditions exist.”
The letter, dated Thursday, also took issue with the notion that the water board lacks authority to stop construction.
“The evidence of harm is already overwhelming and conclusive,” it stated. “The violations MVP has committed and the damage it has done easily meet and exceed the thresholds defined in Virginia law upon which a revocation may be based.”