Last September, torrential rains swept muddy water from a pipeline construction zone into the nearby United Methodist Church in Lindside, West Virginia, washing out the gravel parking lot and leaving a layer of muck in the basement.
In other places along the 303-mile route of the Mountain Valley Pipeline, large rocks rolled off the construction right of way, tumbling more than 100 feet downhill. “This has been an ongoing issue,” regulators wrote in a July 2018 report that also documented problems with erosion control measures and mudslides.
And in February, a contractor working on a Pittsylvania County stretch of the pipeline submitted paperwork stating that erosion maintenance repairs had been made, when in fact they had not.
Those cases — along with scores of instances in which sediment-laden water flowed unchecked from work zones into nearby streams or onto adjacent private property — are listed in weekly environmental compliance monitoring reports filed with the Federal Energy Regulatory Commission.
Yet more than a year after construction of the natural gas pipeline began, FERC has not issued a single “serious violation” notice against the project.
Normally, the finding of a serious violation would initiate formal enforcement action by the agency, which could include a civil penalty or a stop-work order. FERC has imposed no fines against Mountain Valley. In fact, since 2005, the agency has fined just one natural gas pipeline company for violations during construction.
FERC does not keep records of how many stop-work orders have been imposed, spokeswoman Tamara Young-Allen said.
Pipeline opponents, who for the past year have been asking state and federal agencies to address widespread environmental damage caused by construction, said FERC’s lack of action is part of a broken system in which the regulators are too cozy with the industries they regulate.
“It’s obvious there needs to be an overhaul at FERC,” said Jason Shelton, one of the organizers of Mountain Valley Watch, a citizens group that has been monitoring work along the pipeline’s path through the New River and Roanoke valleys.
Although it did not explain in detail its reasons, FERC said the agency defines a serious violation as a compliance failure or activities that cause “substantial harm or are a serious threat to a sensitive area or species.” Such determinations are made on a case-by-case basis.
“FERC staff has determined that the incidents involving the slips/slides/flooding that you referenced along certain Mountain Valley construction spreads were not serious violations of the Commission’s orders,” Young-Allen wrote in an email to The Roanoke Times.
A slip is the movement of a largely intact mass of land down a slope, usually caused by erosion. A slide is more serious, and involves the breakup of earth, rock and water that can sweep whatever lies in its path farther downhill.
As for the false report, Young-Allen said it was Mountain Valley officials who brought the matter to FERC’s attention. According to a weekly compliance report filed by a FERC monitor, a contractor who was not named turned in “punch list items as complete when the items were not completed. The items were erosion control maintenance and minor rill erosion repairs.”
Mountain Valley’s environmental inspector met with construction workers to discuss the matter, and a plan was developed for crew members to write their initials next to completed items and include photographs in future reports.
Although the incident violated regulations, FERC determined it had been addressed adequately and took no further action.
That’s not good enough for pipeline opponents, who say they are met with silence whenever they make reports of streams choked by sediment, mudslides that start on steep slopes stripped of vegetation and saturated by rainfall, and construction crews willing to bend — if not break — the rules.
“The MVP inspector’s false punch list is only the one they were caught on,” said Russell Chisholm, co-chair of the Protect Our Water Heritage Rights (POWHR) coalition, one of many community groups that formed to fight the pipeline.
“This calls the whole project into question.”
Who’s watching the pipeline?
During the course of construction, which began last year, inspectors from the Virginia Department of Environmental Quality and the West Virginia Department of Environmental Protection have issued notices of violation, warning the developers of the interstate project that their efforts to curb muddy runoff failed more than 300 times.
Two-thirds of the pipeline is being built through West Virginia, starting in Wetzel County. The buried pipeline will enter Virginia in Giles County, running another 100-some miles before connecting with an existing pipeline in Pittsylvania County.
The state agencies have issued no fines. However, Virginia’s DEQ and State Water Control Board filed a lawsuit in December against Mountain Valley, seeking unspecified damages and court-ordered compliance.
Project-wide oversight falls to FERC, which in October 2017 granted perhaps the most important approval for the $4.6 billion private venture when it found there was a public need for the natural gas to be shipped at high pressure through the 42-inch diameter steel pipe.
Although it has found no serious violations in more than 4,000 reports filed by its compliance monitors, FERC has documented plenty of problems.
From the project’s inception last year through March 9, the most recent period covered by weekly reports, there have been 1,564 so-called communication reports. A communication report involves an issue that is corrected after discussions with FERC officials, pipeline workers and other parties.
A more serious situation is called a problem area, of which there have been 36 so far. A problem area is something that is considered neither acceptable nor an outright violation.
The next level of severity is a noncompliance report, which documents a violation of regulations or an activity that results in damages to resources or places sensitive resources at risk. FERC compliance monitors have filed 45 noncompliance reports, most of them involving erosion and sedimentation issues.
So why have there been no serious violations?
Some point to a system they say is designed to benefit the natural gas industry, at the expense of the communities through which the pipelines will pass.
FERC’s monitoring is conducted by nine inspectors from Cardno Inc., a private company through which it contracts. Each compliance monitor is assigned to an approximately 30-mile long “spread” of the serpentine construction zone. Reports filed by the monitors state they are “responsible for reviewing Mountain Valley’s construction and documenting compliance with the FERC Certificate.”
The program is paid for by Mountain Valley.
“Private inspection companies … have no motivation to shut down a project to protect the environment — they operate to facilitate project completion,” POWHR said in a statement. “Even the most thorough and dedicated inspectors risk having their hand slapped or losing their job for not toeing the MVP line.”
It was not known how much Mountain Valley pays for the monitoring. Company officials referred all questions to FERC. Young-Allen said details about third-party contracts such as the one with Cardno are considered privileged by the commission and not subject to public release.
Environmental compliance contractors are selected by FERC, she said, and work under the agency’s supervision.
‘It’s a mess’
In 2005, Congress made changes to the Natural Gas Act that gave FERC additional enforcement power over natural gas pipelines under construction.
Since then, there has been just one case brought under the law that resulted in a civil penalty. In January, FERC fined Algonquin Gas Transmission $400,000 after its investigation found the company violated environmental regulations when it entered wetlands to retrieve a drill stem that broke during an expansion of its pipeline in New York state.
“There is some reason to think that this is an increasing area of enforcement focus, not just an outlier,” FERC’s former director of investigations wrote in a blog posted to the website of the Washington, D.C., law firm of Akin Gump, where he now specializes in environmental compliance matters.
While environmental groups have criticized FERC in the past for lax enforcement, that’s not necessarily the case, David Applebaum said in the post and a subsequent interview.
“It’s not as if FERC has not cared about compliance,” he said, explaining that past problems have sometimes been resolved by different offices within the 1,500-employee agency and did not always result in formal enforcement actions. And in some instances, a case is handled by a state agency.
Companies are usually eager to correct problems rather than tempt fines by tangling with regulators. “The fundamental goal is to try to work with FERC and other governmental agencies to get their projects up and running,” Applebaum said.
FERC may be sending a warning to pipeline companies about tougher enforcement to come, he said, pointing to two investigations opened last year involving the Rover Pipeline, a now-completed 713-mile transmission line that runs through Michigan, Ohio and parts of West Virginia and Pennsylvania.
The alleged violations involve the demolition of a historic building designated for protection and spills of diesel fuel on protected wetlands, according to a summary from FERC.
Still, approving natural gas pipelines and monitoring their construction is just one of FERC’s duties. The commission also regulates the interstate transmission of electricity and oil, reviews mergers and acquisitions of energy companies and monitors energy markets, among other things.
The agency’s 2018 Enforcement Report does not list pipeline construction projects among its top priorities.
While individual violations may not seem significant, they should be viewed in the context of massive construction projects spread over several states that can take years to complete, said Maya van Rossum, the leader of the Delaware Riverkeeper Network, which follows FERC closely.
“Because we have at a minimum, dozens and dozens and dozens, if not hundreds, of these types of violations along a pipeline’s life history,” she said. “So that should be enough to inspire FERC to act.
“It’s a mess, truthfully.”
No stop to the work
Not long after bulldozers started to plow a path for the Mountain Valley Pipeline last spring, critics began their refrain: “Stop work now.”
Organizations, individuals and elected officials have asked both FERC and DEQ to order an immediate stop to construction, based on environmental damage in the six Southwest Virginia counties through which the pipeline is passing: Giles, Craig, Montgomery, Roanoke, Franklin and Pittsylvania.
Last summer, FERC issued a stop-work order that lasted about a month. It was not based on a violation by Mountain Valley. Rather, the pause in construction came after the 4th U.S. Circuit Court of Appeals threw out a permit for the pipeline to pass through the Jefferson National Forest, ruling that the Forest Service failed to take into account concerns with erosion and sediment control measures.
In lifting most of the ban Aug. 29, FERC said that leaving the pipeline partially completed would cause even more environmental damage.
DEQ officials also announced two lulls in construction last summer. But those were voluntary, short-term agreements reached with Mountain Valley to correct widespread runoff problems, including one case that left a state road in Franklin County closed by a layer of mud nearly a foot deep.
A state law passed on an emergency basis last year allows DEQ to issue a stop work order if there is a “substantial adverse impact” to state waters, or if one is likely.
“Mr. Paylor, you are the person who can issue the ‘stop work’ order,” Del. Chris Hurst, D-Blacksburg, wrote in a March 18 letter to DEQ Director David Paylor. “That much is clear from the plain reading of the legislation passed in 2018.”
Hurst asked Paylor for a written explanation of why the state had not ordered a stop to construction, which according to its own lawsuit has violated regulations more than 300 times.
He received a response on March 25. “The whole tone of the letter was ‘We’d love to but we can’t,’ ” Hurst said, “which I think underscores the impotence of DEQ” to enforce a statute that lawmakers crafted with the pipeline in mind.
DEQ officials say Mountain Valley has corrected the violations listed in the lawsuit, meaning they no longer constitute a substantial adverse impact. And even if some still did, any stop-work order would be limited to where the problem occurred. There’s no authority for the state to stop work on the entire Virginia portion of the pipeline, they say.
Opponents have fared no better with FERC, which has recorded a number of stop-work requests on its website.
In recent months, work on the pipeline has been slowed by winter weather. About 260 construction workers were on the job in Virginia at the end of March, and Mountain Valley “expects to ramp up steadily through the spring, with full-scale construction planned for summer,” spokeswoman Natalie Cox said.
At the peak of construction last summer, about 2,500 workers were employed in Virginia. Pipeline supporters say the economic benefits that come from those jobs will continue once the pipeline is shipping natural gas, which will in turn help lure new industries to the area.
Before it can resume all work, Mountain Valley must regain two permits struck down last year by the 4th Circuit, one it needs to pass through the national forest and the other to cross more than 500 streams and wetlands in Southwest Virginia.
The company says it expects to have the permits restored in time to complete the project by the end of the year.
As for the church in Lindside, which is just across the West Virginia line from Giles County, Mountain Valley “bent over backwards” to make sure that all the damages caused by the flooding were repaired, said Marshall Judy, chairman of the church’s board of trustees.