Department of Environmental Quality

1111 East Main Street, Suite 1400

Room 2253-A
Richmond, Virginia 23219

Re: Proposed Consent Agreement for Mountain Valley Pipeline LLC

Case No. CL18006874-00, Henrico County Circuit Court

Director Paylor and Members of the Board,

We submit our concerns and comments below, requesting the Henrico Circuit Court to reject the
Proposed Consent Agreement (“PCA”), as its terms are neither fair nor reasonable, and will not
serve the public interest.

In December 2018, Attorney General Mark Herring, the Department of Environmental Quality
(“VADEQ”), and the State Water Control Board (“SWCB”) filed suit against Mountain Valley
Pipeline, LLC (“MVP” or “MVP, LLC”) alleging environmental violations. On October 11,
2019, the Commonwealth of Virginia announced that it had reached an agreement with MVP,
LLC that requires the company submit to court-ordered and court-supervised compliance with
environmental regulations and laws. The Commonwealth seeks the Court’s consent to enter into
the PCA with Mountain Valley Pipeline, LLC in an attempt to settle certain alleged violations of
Virginia's environmental laws and regulations related to construction activities in Craig,
Franklin, Giles, Montgomery, Pittsylvania, and Roanoke Counties, Virginia (Case No.
CL18006874-00 in Henrico County Circuit Court).

We object to the acceptance of the PCA, and respectfully request the Court to reject it as
tendered and consider additional effective and protective measures as set forth hereafter,
specifically stated in our Conclusion and Request at page 12. Preliminarily, we ask the Court to
consider the following:

1. Review and consider the SWCB’s reversal of revocation proceedings regarding the State
401 Clean Water Act Permit, in light of the authority and provisions of Virginia and
federal law set forth in Exhibits A.1-A.31 and/or to require the reconsideration and
1
On February 12, 2019, MVP counsel sent by email a letter only to Director David Paylor, not copying VADEQ
Staff or the SWCB, threatening to file a lawsuit to revoke the Section 401 Certificate, arguing that would invalidate
the Section 401 Certificate and Clean Water Act and Virginia water protection requirements. See attached Exhibit
A.1, T. Normane Letter to Paylor, February 12, 2019. Once informed of the relatively unpublicized letter, a cadre of
Virginia and West Virginia attorneys responded with a letter of substantial Virginia authority in support of the
Board’s authority to revoke. See attached Exhibit A.2, Ben Luckett et. al. Letter to SWCB, February 28, 2019. Also
see Exhibit A.3, POWHR Motion to SWCB re: Conflicts of Interest, Request for Comment, and Staff Failure to
 revisions of the PCA in specific conformity with the remainder of our requests set forth
below, and;

2. As support in its inquiry, we ask the Court to call as its own witnesses sua sponte, from
among those who provided exhibits cited and submitted here, which also serve as
photographic exhibits and sworn declarations to the Fourth Circuit Court of Appeals in
the Endangered Species Act case now pending before the Fourth Circuit, Mountain
Valley Watch.2

The terms of this PCA are neither fair nor reasonable, nor are they in the public interest, for the
following reasons:

1. The PCA waives nearly one full year of offenses and impacts to lands, forest and
waters. PCA Section VIII(a), page 19. The original lawsuit named over 300 violations,
but the Attorney General never amended the pleadings to reflect the last year’s worth of
repeated and flagrant offenses from November 2018 through September 2019. VADEQ’s
own PReP database includes 85 documented citizen reports during this time period (as of
database update on November 15, 2019). It ignores a full year of citizen reporting
presented in the form of five Mountain Valley Watch reports. See Exhibits C.1-C.5. Most
recently, VADEQ issued a Stop Work Order—albeit for a brief two weeks—on
approximately two miles of the route in Montgomery County, and numerous violations
were reported during 2019.3 Penalties should be assessed for violations that occurred in
2019 at the maximum penalty allowed by law.

2. The erosion and sedimentation plans have proven repeatedly ineffective. Mountain
Valley Watch volunteers, as well as scientists, engineers and other professionals, have
documented a year and a half of failed erosion and sedimentation controls (ESC).
VADEQ and MVP should not be allowed to continue to adjust erosion and sedimentation
measures in piecemeal fashion, only after accidents occur. Rather, attorneys, advocates,
and scientists have repeatedly called for the suspension and reconsideration of the
Erosion and Sedimentation Plan.4

Transmit Documents, sent February 28, 2019. The Motion requests went unheeded. Nevertheless, at its March 1,
2019 meeting, the SWCB “revoked its December 13, 2018 decision to begin revocation.” See Exhibit B.1,
“Something’s not right with water board,” Roanoke Times, March 7, 2019. The threat of a lawsuit appears to have
been used by MVP to secure an agreement that was not in the public interest, Exhibit A.1. Please see also Exhibit
B.2, “After hours behind closed doors, State Water Control Board decides not to revoke Mountain Valley Pipeline
certification,” Virginia Mercury, March 1, 2019.
2
Court contacts for witnesses may be made through signatories at the conclusion of this letter. Please see attached
Exhibit C.1-C.5, Mountain Valley Watch Reports to the State Water Control Board, submitted December 2018
through September 2019.
3
See Exhibit D, Virginia DEQ Instruction to Stop Work, issued August 2, 2019.
4
Conservation groups and individuals have repeatedly requested that the VADEQ and SWCB revoke both the State
401 Water Quality Permit and the Erosion and Sediment Control Plans. See, e.g., Exhibit E, Motion for Revised

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 In her Hydrogeological Assessment of the Mountain Valley Pipeline Erosion and
Sedimentation Plan submitted to VADEQ and attached as Exhibit G,5 Dr. Pamela Dodds
noted that MVP, in its ESC plan proposal to VADEQ, assigned a 79% effectiveness
rating to the application of silt fence to contain disturbed earth within the boundaries of
the corridor/right of way.6 Dodds highlighted, “the 79% effectiveness is not endorsed by
the VADEQ and is not the typical rating in any other document that evaluates BMPs.”7
These calculations apply to overland water flow. In Comments objecting to MVP's
proposed "best management practices,” Dodds and many other scientists pointed out
repeatedly to environmental authorities including VADEQ, “the use of a 79%
containment effectiveness for silt fence in based on a M.S. thesis by Greg Steven
Dubinsky, 2014, ‘Performance Evaluation of Two Silt Fence Geosynthetic Fabrics
During and After Rainfall Event.’ The study used 4 feet x 8 feet sheets of plywood with
compacted sediment on the surfaces tilted at 10%, 25%, and 33% slopes with rain event
simulations.”8 The acceptance by VADEQ of support that so lacks in any measure of
field-testing in Appalachian terrain should raise grave and pointed questions from the
Court.

Dr. Cully Hession prepared an individual and site-specific analysis, including stream
bank scour and erosion calculations—the sort of report that our VADEQ with the
affirmance of the Court, should require of Mountain Valley Pipeline. Hession's
calculation for the Mill Creek watershed is just one example of the field analysis that
should have been performed across fragile streams and wetlands in order to inform
decision-makers before construction began—thus enabling better predictions for
necessary Best Management Practices. Hession, a Professional Engineer in Virginia and a
Certified Ecological Designer, has taught engineering classes at Virginia Tech and the
University of Vermont in hydrology, hydraulics, open channel flow, fluvial
geomorphology, and stream restoration. His report describes soil differences, rainfall
variations known to exist across the same mountain. He further describes the failures of
MVP to provide an accurate count of impacted second and third order streams in the
subject watershed, the unpredictable impacts to karst, and the predictable impacts of flow

Stormwater Discharge Analysis, filed by Preserve Craig et al, September 4, 2019. FERC Accession No. 20190904-
5018. See also Exhibit F, Sierra Club Request to Stop Work, Letter re: ongoing degradation of endangered species
habitat, November 5, 2019. FERC Accession No. 20191105-5127.
5
Pamela Dodds, PhD, Licensed Professional Geologist. Hydrogeological Assessment of the Mountain Valley
Pipeline Project Erosion and Sediment Control Plan and Stormwater Management Plan Submitted to the Virginia
Department of Environmental Quality. Prepared October 3, 2017.
6
Revised Universal Soil Loss Equation, (RUSLE 1.06 and RUSL2, USDA website).
7
See Dodds, page 26.
8
See Dodds, pages 24, 26-28—photos of project at page 28.

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 and for scour and sedimentation analysis across each stream.9 The information below lies
in stark and disturbing contrast to the professional practice guidelines cited above.

3. The PCA fails to require remediation of surface waters by way of Biological

Assessments of the harm caused by stream sedimentation. The obvious intent of the
PCA is to ensure future compliance by judicial order, which may eliminate the need for
future independent enforcement action. Thus, the PCA should include provisions that
embody the Commonwealth’s duty to protect water quality in accordance with Virginia
Water Quality Standards. In the December 6-7, 2017 MVP Permit Hearing, Board
Member Timothy Hayes expressly asked DEQ Water Permitting Director Melanie
Davenport to confirm that the “Narrative Water Quality Standard”—the common
reference for the “General Standard”—would apply in practice to the MVP.10 Melanie
Davenport, an attorney, promptly confirmed, “yes,” thereby assuring the Board of the
agency’s intent to enforce the General Standard. The Board’s decision to approve the 401
Certification was clearly conditioned on the members’ understanding that water quality
would be protected from the construction of the Mountain Valley Pipeline by
enforcement of the General Standard.

The Commonwealth has abandoned its duty to assure compliance with the General
Standard in the Water Quality Standards for the MVP. The Commonwealth has been
provided significant documentation of repeated and widespread assault of sedimentation
to streams and wetlands from the MVP. The health and vitality of the organisms in what
were clean-flowing mountain streams was dependent on relatively-sediment-free water.
The Roanoke River watershed has been managed for 30 years to minimize sedimentation
impacts that could impede the recovery of the Endangered Roanoke Logperch (RLP).
The RLP has been the subject of public funding and efforts to restore its habitat and

9
See Exhibit H, Cully Hession, PhD, PE, CED. Mill Creek Watershed Report, filed in FERC Docket for MVP
February 21, 2017. FERC Accession No. 20170221-5228.
10
The General Criteria to which the Mountain Valley Pipeline is subject to regulation pursuant to the 401
Certification, as affirmed by DEQ prior to the Board vote in December 2017, prescribes as follows:

General Criteria.
A. State waters, including wetlands, shall be free from substances attributable to sewage, industrial
waste, or other waste in concentrations, amounts, or combinations which contravene established
standards or interfere directly or indirectly with designated uses of such water or which are
inimical or harmful to human, animal, plant, or aquatic life.

Specific substances to be controlled include, but are not limited to: floating debris, oil, scum, and
other floating materials; toxic substances (including those which bioaccumulate); substances that
produce color, tastes, turbidity, odors, or settle to form sludge deposits; and substances which
nourish undesirable or nuisance aquatic plant life. Effluents which tend to raise the temperature of
the receiving water will also be controlled. Conditions within mixing zones established according
to 9VAC25-260-20 B do not violate the provisions of this subsection.

9VAC25-260-20.

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 recover the species for 30 years. It is commonly accepted by fish and wildlife scientists
that the RLP is harmed by sedimentation at all stages of its life. Angermeier’s letter, sent
to the US Fish and Wildlife Service in October 2018, was not published by USFWS until
April 2019—six months later. The substance of his letter makes apparent the agency’s
attempt to avoid the inclusion of the wealth of Angermeier’s expertise and judgment in
requiring species protections in the path of MVP—and to that end, the intent to avoid
inclusion of Angermeier’s information in the Biological Opinion—a critical permit for
MVP’s construction to proceed.11

MVP, agency and private inspectors have repeatedly failed to control stream
sedimentation. There is documentation of sedimentation in streams from Franklin County
in Rocky Mount, heavily under construction for a year and a half, across 38 miles and up
to Roanoke County atop Bent Mountain, whose six miles of upland plateau and Tier III
waters have abutted construction at the Blue Ridge Parkway, Green Creek and Adney
Gap. With each rain event, that sediment is stirred up and transported and deposited
further downstream.12 The soil sedimentation will remain in public water resources until
it is removed.

Virginia law, as a part of the federal Clean Water Act, requires MVP to undertake several
measures in bona fide, on-site mitigation. Biological assessments are necessary to reveal
impacts to “beneficial uses” of surface waters into which sediment has been discharged
as a result of the construction of the pipeline. VADEQ is further responsible for requiring
MVP, LLC to conduct sediment removal and stream restoration where “beneficial
uses”—such as swimming, fishing, and recreation, all of which are delineated in the
General Criteria—have been impacted. VADEQ then has a continuing duty to follow-up
in remediation of impacted surface waters.

Extreme stream bank erosion has affected streams within the MVP right of way, as well
as beyond and downstream of it, because MVP’s original stormwater runoff analysis was
not performed in a scientifically supportable manner. VADEQ allowed MVP to
“assume,” in construction planning, that the runoff characteristics from forested and
otherwise stable slopes would not change after all vegetation was removed, soil
excavated, and soil compacted in the construction process.13 This obvious miscalculation
allowed 300 miles of the surface of the route to become impervious and nonabsorbent,
creating stormwater runoff, the volume of which has increased since tree clearing. It has

11
See P. Angermeier October 2018 Letter to US Fish and Wildlife Service, Contained in Exhibit I, USFWS filing
requesting additional information on endangered species impacts, filed April 12, 2019. FERC Accession No.
20190412-5164.
12
See, e.g., attached Exhibit F, Sierra Club November 5 Request for Stop Work, and Exhibits C.1-C.5, Mountain
Valley Watch Reports
13
See generally Exhibit E, Preserve Craig Motion for Revised Stormwater Discharge Analysis.

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 caused excessive loss of stream banks and contributed to radical stream sedimentation.
MVP crosses Teels Creek in Franklin County seven times, and its tributaries an untold
number of times. Teels Creek watershed joins Little Creek, which then joins the
Blackwater—all three water bodies have been identified as “suitable habitat” for the
Logperch, and have been documented as among the most ravaged of MVP-impacted
watersheds.14

It is vital that the Commonwealth correct all the problems that MVP has wrought upon
water resources, before any construction is allowed to resume on Bent Mountain in
Roanoke County, as well as other mountainous slopes which are home to so many of
Appalachia’s rare and endangered species. The pipeline threatens to cross Bottom Creek
and its tributaries—a Tier III waterbody which flows into the South Fork of the Roanoke
River, habitat to the Roanoke Logperch—at least 39 times, and impact a greater number
of wetlands across this mountainous, upland watershed ranging from about 2700 to 3928
feet, at the gateway from the Roanoke Valley to the Blue Ridge Plateau.15 Some of the
most severe slopes, from Sinking Creek in Giles County (candy darter habitat), to Poor
Mountain in Roanoke County (Roanoke Logperch and trout), to Adney Gap in Franklin
County (Roanoke Logperch and trout) have yet to be unearthed and built upon by MVP.
We respectfully ask the Court to protect these resources and habitats.16

With this evidence above, we ask the Court require numeric water quality testing at
regular and salient intervals along MVP-impacted waterways and wetlands, with
coordination of USGS and DEQ with volunteer monitors trained by Trout Unlimited
and/or Save Our Streams.

4. The PCA lacks meaningful and effective oversight of the state agency and
individuals charged with protecting Virginia’s water resource. In the event the PCA
proceeds in some measure, please note the public has repeatedly explained to the
VADEQ, SWCB and the Attorney General that MVP as the developer cannot possibly
perform an un-conflicted inspection process.

Environmental oversight should be independent and adequate. We understand that under

the present scenario, MVP Inspectors (approximately six per Spread) and Third Party

14
See Sierra Club et al. v. US Department of Interior, Case No. 1918-66 before the US Fourth Circuit Court of
Appeals.
15
Contrary to VP Robert Cooper’s January 2017 insistence before the Roanoke federal court in January 2017, MVP
has not built in linear order. Rather it has “hopscotched” construction across the route where it was stopped by the
absence of the Nationwide 12 Permit revocation—dodging and sparing only some streams and wetlands. MVP
bored under others, where the FERC under the guise of a “variance,” ushered through the company’s destruction.
16
Please note that we reserve most information in this comment to the Virginia portion of MVP’s route relative to
VADEQ. It cannot reasonably be ignored that Peter’s Mountain and continuous watersheds along the Appalachian
Trail in West Virginia are equally impacted and at risk.

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 Contract Inspectors (McDonough Bolyard Peck (“MBP”) in this case, among others,
usually two per Spread) all are paid from MVP funds. There are two FERC Inspectors
and—for 100 miles of Virginia route—only three staff Inspectors actually employed by
VADEQ. Where MVP hires its own Inspectors, FERC Inspectors operate in a bureaucracy
whose written mission statement advances natural gas infrastructure, and where VADEQ
and Third Party Inspectors work under a system politically and financially compromised
by the gas industry, there is no independent accountability.17

Moreover, we are concerned that simply adding an Environmental Auditor (PCA Sec. IV
(b), p. 6) merely establishes another shield from public accountability, and insulates
VADEQ, the SWCB, the Attorney General, and MVP from further public and
professional scrutiny. It will not change the inclination of privately contracted inspectors
—and a bureaucracy controlled by elected officials of most parties whose campaigns are
funded by the gas industry—to advance the interests of a private corporation. At the very
least, VADEQ, the state agency whose mission is to protect our water resource, should be
required to hire, and to be responsible for, supervising additional auditors for the duration
of project, and not MVP.

The public has witnessed 18 months of failed oversight and the destructive repetition of a
history of unsatisfactory work.18 MVP and its main contractor in Virginia have been cited
and fined in other states. The filings of Preserve Craig Inc, to the State Water Control
Board at the permit hearing in December 2017 and on the FERC docket, indicate MVP
agents and officers demonstrate a pattern of flagrantly ignoring environmental
requirements, including Erosion and Sedimentation requirements of Virginia.19 Under the
proposed settlement, MVP chooses and supervises auditors, whether ESC’s have been
properly repaired, and they visit sites every two weeks, or when stream and wetland work
is occurring, assuming MVP’s notice is adequate (PCA Sec. IV (b)(1), page 9). The PCA
requires only that some reports and plans be made public (PCA Sec. IV (b)(1), page 9, as
compared to PCA Sec. IV (d), page 10). This provision of the PCA wholly lacks basic
clarity and creates serious confusion in that it failed to define “resources” as it relates to
MVP’s obligation for ESC repair and maintenance—whether this means financial,
human, supply, or other resources—and it does not make such information available to
the public. Such provisions thus fail to require timeliness and transparency, and they add

17
We are informed that some inspectors on construction Spreads appear to be "documenting only" —and "not
fixing." Whether this is a game of blame shifting and liability between and among private corporations and
environmental agencies is not clear. What is clear is that no one corporate or agency entity seems to be adequately
protecting impacted sites, which in turn impact the waters of the Commonwealth, impacted sites, and the landowners
and communities who rely on them.
18
See Exhibit C.1-C.5, Mountain Valley Watch Reports.
19
See Exhibit J, Preserve Craig Letter to SWCB, submitted to the SWCB in August and December of 2017. Please
also see Exhibit K.1-K.5, local news coverage of pipeline environmental problems. Citations included with exhibits.

Page 7 of 14
 no meaningful oversight and enforcement over what was already being done poorly by
VADEQ/MBP/MVP.

We therefore ask that the Court direct that hiring and supervision of any additional
inspection staff be conducted directly by the Commonwealth and that the home base of
any new inspectors, including a lead Environmental Auditor, to be physically,
technically, and financially managed and supervised by the Roanoke Office of the DEQ
in collaboration with a local contact of Secretary of Natural Resources.

5. The extremely low fine will affect no deterrence. In order to deter future wrongdoing,
noncompliance with environmental requirements must be more costly than compliance.
As a matter of enforcement policy, and at a minimum, a civil charge or civil penalty
should remove any significant economic benefit of noncompliance. Throughout the last
year and a half, evidence of MVP’s wholesale failure to apply both erosion and
sedimentation control material and human resources to establish E&S measures indicate
that MVP predicts it will cost the corporation less to avoid or delay compliance. Thus,
while a million or more dollars is seemingly a significant fine to the Court and the
general population, in this context, a civil penalty of $2.15 million serves as no deterrent
whatsoever, for the reasons explained below:

Chapter 3.1. State Water Control Law, Article 6. Offenses and

Penalties (§ 62.1-44.32) states that “any person who violates any
provision of this chapter, or who fails, neglects, or refuses to
comply with any order of the Board, or order of a court, issued as
herein provided, shall be subject to a civil penalty not to exceed
$32,500 for each violation within the discretion of the court. Each
day of violation of each requirement shall constitute a separate
offense.”

The proposed penalty of $2.15 million is a miniscule 0.038% of the total MVP operating
budget, now increased to $5.5 billion, an overrun of $2 billion from the original project
budget in 2017. The financial penalty is so small, in fact, that polluters will not see it as a
deterrent to future crimes and offenses, but rather as a mere pittance, the cost of doing
business in Virginia.

a. Assuming each of the 300+ alleged violations only lasted for a single day, if the
penalty adhered to the maximum allowable fine of $32,500 per violation (VA
Code §§ 62.1-44.15 and 62.1-44.32), the Commonwealth could levy a civil
penalty of $9.75 million. Even that fine would only amount to 0.195% of MVP’s
$5 billion operating budget.

Page 8 of 14
 b. The nominal fines stipulated in the PCA ($500-$1,000 in most cases), do nothing
to deter future wrongdoing.

c. The civil penalty is even more egregiously low in light of the estimates from the
City of Roanoke:

i. As an example, the City of Roanoke used MVP's own study of North Fork
of the Roanoke River to estimate over $36 million in additional annual
stormwater fees due to MVP runoff.20 This is a conservative estimate, as it
includes only sedimentation effects to the North Fork of the Roanoke
River—not the South Fork of the Roanoke River coming from Bent
Mountain and Poor Mountain, nor Yellow Finch on the back side of Poor
Mountain. DEQ may depart from recommended calculations to seek
penalties up to the maximum sums permitted by law where the interests of
equity, deterrence, and justice require. In this case, the civil penalty should
be increased to at least $9.75 million for just those violations recognized
by VADEQ that occurred in 2018, per the Virginia Code cited above.

d. The Compliance history review is inadequate in assessing a penalty. When a

contractor has previously violated an environmental standard at the same or a
different source or facility, it is usually clear evidence that the contractor was not
deterred by the previous enforcement response. MVP and its contractors have
numerous violations in West Virginia with Notices of Violations issued by the
WV Department of Environmental Protection, as well as Consent Orders from
past pipeline projects that were not considered in assessing penalties. See footnote
19, MVP and contractor history.

e. The parties failed to disclose how fines were assessed. The Civil Charges and
Civil Penalties Worksheet for Water Programs sets out the specific criteria used
by DEQ to calculate appropriate civil charges and civil penalties in administrative
actions.21 The parties advancing this PCA offer no disclosure of the calculations
used to assess penalties.22

20
Roanoke City Stormwater Briefing on MVP, presented to Roanoke City officials September 15, 2017. Also, S.
Stovall, Acting City Manager for Roanoke City, Letter to Ann Regn re: Mountain Valley Pipeline Water Quality
Certification, August 15, 2017.
21
See VADEQ Enforcement Manual, Chapter 4: Civil Charges and Civil Penalties, effective December 1, 2016.
22
Gravity-based criteria cover two areas: (a) violations and frequency; and (b) aggravating factors as multipliers.
DEQ categorizes the charges based on their Potential for Harm classification. There were no “Disclosure of Harm”
classifications used in Gravity based calculations.

Page 9 of 14
 f. DEQ assessed MVP’s culpability based on the facts and circumstances of the
case. DEQ rates culpability and then adds a multiplying factor to the Worksheet
for calculation of penalties. There was no disclosure of culpability ratings used in
Worksheet penalty calculations. One factor considered in culpability ratings is
whether there is evidence of unjustified delay in preventing, mitigating or
remedying the violation. A rating of high culpability should be used for
calculating penalties in the Worksheet. Mountain Valley Watch reports as well as
independent citizen reporting—all a part of the VADEQ public record—show
ample evidence of unjustified delay in site mitigation and, in several severe cases,
over one year and an half of neglect and inaction reported by observers. Gross,
repeated and continuing environmental damage occurred due to continued delays
in erosion control maintenance as documented by observers.

g. There is no detail as to allocation of funds from fines, which makes it likely

that individuals and communities impacted by MVP’s damage will still have no
recourse for damage done, as state actors/agencies takes millions to use as they
wish—similarly to Governor McAuliffe’s original acceptance of $37 million in
“mitigation” funding. The civil penalties may and should be directed to be paid
into the treasury of the county, city, or town in which the violation occurred, to be
used for the purpose of abating environmental pollution.

6. Boring operations were not approved by the FERC Certificate and the State 401
Certificate. The Notification for Waterbody and Wetland Crossings, PCA IV(c), page 10,
suggest the Attorney General may misunderstand that “boring/HDD” is somehow an
insignificant and harmless construction practice. Evidence before VADEQ and SWCB,
as well as the Fourth Circuit and FERC, shows just the opposite. Photographs of the
gross disruption of earth at and near stream crossings, wetlands, and floodplains, in the
guise of protecting fragile stream and wetland environments, may be seen in the filings in
the Endangered Species Act case filed by Sierra et al (Case No. 1918-66), now pending
in the Fourth Circuit Court of Appeals.23

Approval of under-stream and -wetland boring/HDD activities was not contemplated by

the Virginia State 401 or the NWP12 authorization. The practice appears to have been
slipped into MVP’s construction in Virginia by way of Variance MVP-014, requested
and granted between June 11 and 14, approval for which was hidden in the FERC docket
in a letter titled for Harrison County, West Virginia.

23
See Declarations attached to Sierra Club Letter Requesting Stop Work Order filed in FERC Docket October 2,
2019. FERC Accession No. 20191002-5030; ICWA Objection to Variance MVP-014, filed in FERC Docket June
17, 2019. FERC Accession No 20190617-5039; Preserve Bent Mountain Objection to Variance MVP-014, filed in
FERC Docket June 14, 2019. FERC Accession No. 20190614-5043; BREDL Objection to Variance MVP-014, filed
in FERC Docket June 14, 2019. FERC Accession No. 20190614-5040.

Page 10 of 14
 The PCA as proposed, assumes these practices are acceptable without state investigation
and scrutiny, and without public notice and comment.24 This allows MVP an “end run”
around the Corps of Engineers Nationwide 12 Permit authorization and violates the terms
of the FERC Certificate. In public hearings since June 27, 2019, the SWCB and the
Attorney General have remained silent in response to the public’s vociferous objections
to continued under-stream boring activity.

a. Below precipitous slopes of Adney Gap in Virginia, MVP’s lack of erosion and
sedimentation control materials and practices, resulted in a significant
sedimentation event at Green Creek on July 23, 2019.25 Whereas official reports
indicated MVP’s boring site was completed at Wade’s Gap, Virginia, by August
16, the company nevertheless continued trenching and stringing pipe, and
excavating the rock layer of an ancient floodplain located in a historic and vital
rural community, and disrupting earth well through September and into October,
allowing groundwater—significant to both local residents and endangered species
including the Roanoke Logperch—to fill MVP’s trenches.26

b. The Commonwealth allowed three under-stream and under-wetland boring sites

to proceed through construction in Franklin County, Virginia from mid-June
through October 2019, despite MVP’s failure to notify VADEQ officials that they
were breaking ground on June 13, 2019—five days before records reflect official
notification to VADEQ Director of Water Permitting. This constitutes a major
change in construction plans contemplated neither by the SWCB in assessing the
State 401 nor by the Commission when approving the FEIS and the FERC
Certificate.27

24
MVP has been allowed to rewrite the construction plans authorized under their FERC Certificate via over 200
variances filed with no recourse or input from important stakeholders and the public, as detailed in the attached
Exhibit L, Report from POWHR prepared for Senators Kaine and Warner, November 12, 2019. Since project
construction began in February 2018, MVP has requested and been granted 133 formal variances and 86 in-field
variances. This includes several variances requesting to change the method of stream and wetland crossing at 57
streams and 13 wetlands in Virginia and West Virginia. There is no documented communication between MVP and
VADEQ regarding these changes prior to the variances being requested and granted by FERC. These massive
changes to construction plans should have constituted a “major construction change” by VADEQ, which requires
prior approval under the approved Virginia Section 401 Certification for Mountain Valley Pipeline.
25
See Exhibit C.1, MVW Report September 2019.
26
See generally Declarations attached to Sierra Club Letter Requesting Stop Work Order filed in FERC Docket
October 2, 2019. FERC Accession No. 20191002-5030.
27
There is too little research on the subject of trenchless technology and under-stream and -wetland boring to allow
the parties to lightly dismiss the ground- and watershed altering effects of the massive earth movement required for
boring activity. See, eg, Phalguni Yamuna Moganti, “Safety Risk Investigation of Horizontal Drilling Projects,
(2016), https//tigerprints.clemson.edu/all/thesis/2451; See also M. Osbak, Investigation of Horizontal Drilling Risks,
March 2012, and M. Osbak and C. Murray, The Economics of Risk Absorption and Risk Transfer Strategy in
Horizontal Directional Drilling, NASTT No-Dig Conference, Sacramento 2012.

Page 11 of 14
 c. The potential for boring was neither disclosed nor assessed in the Final
Environmental Impact Statement—indeed the FEIS stated, "all waterbodies
crossed by the MVP will be dry open-cut crossings." See MVP Final EIS at 2-
43. MVP in fact emphasized the high risks of boring in the MVP Southgate DEIS,
stating:

Conventional bores require large entry and exit pit excavations at each end
of the bore pathway and therefore create the risk of sediment runoff
entering the adjacent waterbody. Of greatest risk to the waterbody is the
possibility of the borehole collapsing without warning. In such a case the
bed of the waterbody could collapse and reroute the waterbody into the
bore pathway [emphasis added].

In order to protect against the very serious risks described above, the National
Environmental Policy Act (NEPA) requires Notice and Comment. FERC is
required under its own certificate to initiate a public Notice and Comment and
undertake a Supplemental Environmental Impact Statement before the company
can make a major change in construction. 40 C.F.R. Sec 1502.9(c).28

7. If the parties wish to retain the right to waive stipulated penalties or to substitute
monetary penalties for Supplemental Environmental Projects, then at a minimum,
the Court should require a formal public Notice and Comment period, and a vote by
the SWCB.

CONCLUSION AND REQUEST

The Proposed Consent Agreement should be rejected. It speaks to Virginia officials’ capitulation
to MVP in allowing the company, its officers, and agents to avoid admission of or responsibility
for any wrongdoing or liability for civil or criminal violations—despite evidence of a pattern of
repeated and willful avoidance of regulatory requirements by MVP. To date, out-of-state limited
liability corporation MVP has been allowed—by officers and agents of the Commonwealth—to
continue to work here, despite the fact it is missing at least four major permits, and its
demonstration of “public need” supportive of takings in eminent domain is nonexistent,
according to an independent consultant for the Virginia State Corporation Commission.29

28
See pages 13-15 of Sierra Club Letter Requesting Stop Work, filed October 2, 2019. FERC Accession No.
20191002-5030.
29
See generally John A. Stevens, Deputy Director, Commonwealth Division of Public Utility Regulation, State
Corporation Commission Prefiled Staff Testimony, Roanoke Gas Company Application for a Rate Increase, PUR-
2018-00013, June 28, 2019.

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For the reasons set forth above, we respectfully ask the Court to reject the PCA. Specifically, we
request that the Court:

1. Review Exhibits A.1-A.3, in particular the February 28, 2019 Letter to the State Water
Control Board signed by 12 attorneys, including several Virginia practitioners;

2. Take such action the Court deems appropriate relative to the State Water Control Board
revocation proceedings (December 2018-March 2019), in light of concerns raised by the
public in the above-cited documents. In support of Requests 1 and 2, we ask the Court’s
thorough review and consideration of documents provided here;

3. In support of the above, we urge the Court, sua sponte, to take evidence, calling its own
fact witnesses, from among those identified in Exhibits filed herein;

4. Direct that hiring and supervision of any additional inspection staff be conducted directly
by the Commonwealth and that the home base of any new inspectors, including a lead
Environmental Auditor, to be physically, technically, and financially managed and
supervised by the Roanoke Office of the DEQ in collaboration with a local contact of
Secretary of Natural Resources;

5. Require numeric water quality testing at regular and salient intervals along MVP-
impacted waterways and wetlands, with coordination of USGS and DEQ with volunteer
monitors trained by Trout Unlimited and/or Save Our Streams; and

6. Require the VADEQ, SWCB, Attorney General, and MVP to reassess and recalculate
appropriate proposed fines, and

a. To direct that fines to be applied to Southwest Virginia localities, specifically

directed at physically repairing and mitigating sites of the waters of the
Commonwealth; and

b. To require the highest fine allowed by law, thus requiring a good faith and
credible effort by the Commonwealth to effect deterrence—and to require
compliance—by any and all of those acting on behalf of repeat offenders.

Under the present version of the PCA, MVP will walk away with no conviction, no record of
wrongdoing. Following one Notice of Violation (July 2018), one FERC Stop Work (August
2018), one DEQ Stop Work (August 2019), one Voluntary Stop Work (June 2018), one
Voluntary “Cessation of Activities” (August 2019) and one more FERC “limited” stop work
(October 2019) in one and one half years, the Commonwealth has afforded MVP far too many

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chances. Coupled with lack of transparency, lack of inspector accountability, and a lightweight
fine which will not be applied to any affected community or individual, the PCA results in a
classic “pay to pollute” plan which broadcasts to out-of-state corporate opportunist polluters,
protected by the shell of an LLC, that the Commonwealth is open for business to anyone who
can prepay their crimes.

Respectfully,

Protect Our Water Heritage Rights Coalition Executive Committee

Russell Chisholm, Preserve Giles County
Roberta Bondurant, Preserve Bent Mountain
Lynda Majors, Preserve Montgomery County, VA
Maury Johnson, Preserve Monroe

Protect Our Water Heritage Rights (POWHR) is a Coalition of grassroots volunteer

organizations in communities from West Virginia through Southern and Southwest Virginia,
all working to protect the natural assets, property rights, cultural heritage and human rights of
those harmed by the expansion of fossil fuel infrastructure. Serving groups impacted by the
Mountain Valley Pipeline, our members practice and support conservation and advance
renewable energy choices, for a livable future.

Member Organizations:
Greenbrier River Watershed Association
Headwaters Defense
Mountain Lakes Preservation Alliance
Preserve Craig, Inc.
Preserve Franklin
Preserve Giles County
Preserve Monroe
Preserve Montgomery County, VA
Preserve Roanoke/Bent Mountain
Preserve Salem
Save Monroe
Summers County Residents Against the Pipeline (SCRAP)
The Border Conservancy

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