JACKSONKELLY„,c
500 LEE STREET EAST • SUITE 1600 • P.O. BOX 553 • CHARLESTON. WEST VIRGINIA 25322 • TELEPHONE: 304-340-1000 • TELECOPIER: 304-340-1 1 30. www.jacksonketly.com E-mail Address: [email protected] Writer's Fax No.: 304-340-1272 Direct Dial No.: 304-340-1203 May 21, 2018
VIA ELECTRONIC AND U.S. MAIL
Jackie D. Shultz Clerk of the Board Environmental Quality Board 601 57th Street, SE Charleston, WV 25304
Re: Susan Taylor Dropp. et al. v. WVDEP, Appeal No. 18-01-EQB
Dear Ms. Shultz:
On behalf of Mountaineer Gas Company and the West Virginia Department of Environmental Protection, enclosed for filing are the original and six (6)) copies of a JOINT MOTION TO DISMISS OR FOR SUMMARY JUDGMENT ON CERTAIN CLAIMS OF APPELLANTS in the above-referenced appeal.
Sincerely yours, eft-- A/4 CHRISTOPHER M. HUNTER
CMH/sbo Enclosure cc: Susanne E. Thompson, w/enc. Rose Monahan, w/enc. Jason Wandling, w/enc.
Bridgeport,VVV • Charleston,WV • Martinsburg,VVV • Morgantovm,VVV •Wheeling,WV 4850-8538-3782.v1 Denver, CO • Crawfordsville, IN • Evansville. IN • Lexington, KY •Akron, OH • Pittsburgh, PA •Washington, DC WEST VIRGINIA ENVIRONMENTAL QUALITY BOARD CHARLESTON,WEST VIRGINIA
SUSAN TAYLOR DROPP and LAURA STEEPLETON,
Appellants,
v. Appeal No. 18-01-EQB
DIRECTOR,DIVISION OF WATER AND WASTE MANAGEMENT,DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Appellee,
and
MOUNTAINEER GAS COMPANY,
Proposed Intervenor/Appellee.
JOINT MOTION TO DISMISS OR FOR SUMMARY JUDGMENT ON CERTAIN CLAIMS OF APPELLANTS
I. INTRODUCTION
By letter of February 7, 2018, Mountaineer Gas Company ("Mountaineer')
obtained approval from the West Virginia Department of Environmental Protection("WVDEP")
to use a general water pollution control permit for discharges of stormwater associated with
Mountaineer's "Eastern Panhandle Expansion Project" ("Project'). See Certified Record ("CR"),
p. 1855. The general permit and Mountaineer's registration to use it were issued under the terms
of the West Virginia Water Pollution Control Act, W.Va. Code § 22-11-1 to -20. Appellants
appealed that approval to this Board pursuant to W.Va. Code §22-11-21 on March 9, 2018. On
March 22, 2018, Mountaineer and WVDEP moved to dismiss the claims advanced in paragraphs
1 a, 2, 3 & 5a for failure to state a claim in accordance with Rule 12(b)(6) of the West Virginia
Rules of Civil Procedure. See "Joint Motion to Dismiss Certain Claims of Appellants."
4844-5833-0214.v1 In lieu of responding to the Joint Motion to Dismiss, Appellants filed an Amended
Notice of Appeal on April 9, 2018. The Amended Notice of Appeal did not include certain
objections that were the subject of the Joint Motion to Dismiss.' The Amended Appeal advances
arguments in seven numbered paragraphs and six sub-paragraphs. See Amended Notice of
Appeal, In 5-11. By this motion, WVDEP and Mountaineer move the Board to dismiss for failure to state a claim in accordance with Rule 12(b)(6) of the West Virginia Rules of Civil
Procedure or grant the Appellees summary judgment pursuant to Rule 56 of the W.Va. R. Civ. P.
on the claims advanced under the following paragraphs: ¶¶6.a., 6.b., 6.c., 6.f, 7, & 11. Regardless
of the quality and quantity of the evidence that the Appellants might produce, these claims fall
outside the permissible bounds of a challenge to the Construction Stormwater Permit.
H. FACTS
The Mountaineer Project involves the construction of an intra-state natural gas
distribution system. In contrast to the 36-42" interstate transmission lines proposed to traverse
hundreds of miles across the region, Mountaineer's Project consists of a smaller 10" diameter
pipeline that will run about 23 miles from Berkeley Springs to Martinsburg. It will involve the
disturbance of only about 191.7 acres along the entire length of the Project. See CR, p. 1
(WVDEP's Responsiveness Summary for Registration Application No. WVR310880). The
approval authorized Mountaineer to use WVDEP's Oil & Gas Construction Stormwater General
Permit.
I The following claims, which were advanced in the original appeal and which Intervenor and Appellee moved to dismiss, were not included in the Amended Notice of Appeal: • WVDEP should have required an individual storm water permit to control possible inadvertent returns associated with underground borings; • WVDEP should conduct a 401 certification review; • WVDEP should request the U.S. Army Corps of Engineers to require an individual 404 permit; • A pipeline project must file a WV Code § 24B-3-2 inspection and maintenance plan.
2 4844-5833-0214.v1 Construction stormwater NPDES permits were first required by Congress under
the Federal Clean Water Act ("Clean Water Act" or "CWA") after 1987 for land disturbance
associated with construction activities. See Stormwater Phase II Compliance Assistance Guide,
EPA 833-R-00-002, p. 2-4 (2000);2 see also 55 Fed. Reg. 47990 (Nov. 16, 1990) (EPA's
promulgation of rules requiring NPDES permits for stormwater discharges from various sources,
including construction activities disturbing 5 or more acres). Prior to that, these activities were
considered non-point activities otherwise not subject to the NPDES permit program.3 Congress,
however, specifically excluded the oil and gas industry from these requirements, and even today
there is no federal requirement that natural gas pipelines obtain a construction stormwater
NPDES permit. 33 U.S.C. § 1342(1)(2) (no NPDES permit required for uncontaminated
stormwater from oil and gas transmission systems).
Despite the exemption from the Federal CWA, WVDEP has created a "state only"
requirement that oil and gas pipeline construction projects obtain a construction stormwater
permit. WVDEP requires the oil and gas industry to obtain coverage under the General Permit
to ensure a "consistent application of pollution control measures" and to establish a "level
playing field." See WVDEP's Fact Sheet for General Water Pollution Control Permit for
Stormwater Associated with Oil and Gas and Related Construction Activities, p. 2, ¶ 84
("WVDEP's Fact Sheet").
2 Available at https://www3.e_pa.gov/npdes/pubs/comguide.pdf(last accessed March 21, 2018).
3 See, e.g., Nat. Resources Def. Council v. U.S.E.P.A., 915 F.2d 1314, 1316 (9th Cir. 1990)(describing history of CWA and noting that, prior to 1987, "[t]he discharge of pollutants from nonpoint sources—for example, the runoff of pesticides from farmlands—was not directly prohibited. The Act focused on point source polluters presumably because they could be identified and regulated more easily than nonpoint source polluters.").
4 Available at https://dep.wv.gov/WWE/Programs/stormwater/csw/Documents/OG%20CSW%20Fact%20Sheet.pdf.
3 4844-5833-0214.v1 The primary means of authorizing stormwater discharges associated with pipeline construction is through the WVDEP's Oil & Gas Construction Stormwater General Permit—last issued after notice and comment in 2013.5 In lieu of traditional "effluent limitations" imposed in
NPDES permits for non-stormwater permits, the General Permit establishes an extensive set of
"best management practices" ("BMPs") to control erosion and sediment from earth disturbing activities. Persons desiring to use the General Permit must submit a detailed "registration" application with considerable detail about the BMPs that will be used for each area of planned disturbance. Here, Mountaineer submitted a registration application containing detailed plans for using BMPs along the route of the pipeline project. After considerable review, WVDEP approved the registration on February 8, 2018.
III. DISCUSSION
A. Objections relating to stream crossings, which are covered by Mountaineer's CWA § 404 permit(NWP 12), are not appropriately raised to the General Permit(¶¶ 6.a., 6.b., 6.0.
The Amended Notice of Appeal raises the following objections in Paragraph 6:
a. The Permit application fails to provide site-specific designs for stream crossing methods;
b. The Permit application fails to provide restoration plans for stream crossings; * * * * f. The Permit application identifies 62 stream crossings including Warm Spring Run, Dry Run, Sleepy Creek, Big Run, Cherry Run, Gough Run, Tilhance Creek, Back Creek, Tulissus Branch and unnamed tributaries thereto, and fails to demonstrate adequate stream protection at these points.
Emphasis added. The General Permit is intended to control stormwater from disturbed areas—it is not intended to control sediment or pollutants that could be released during stream crossings,
5 Available at https://dep.wv.gov/WWE/Programs/storrnwater/csw/Documents/OG%20stormwater%20GP%203_ 10_15.pdf.
4 4844-5833-0214.v1 whether they be so-called "open cut" crossings or consist of underground borings. The potential
impacts of stream crossings fall to the exclusive domain of the Army Corps of Engineers in its
implementation of Section 404 of the Clean Water Act("CWA"). See 33 U.S.C. §1344(a)
(granting Secretary of the Army exclusive authority to permit discharges of dredged or fill
material).
The Project includes numerous pipeline stream crossings. Mountaineer has
obtained approval for these crossings under Army Corps of Engineers' Nationwide Permit
("NWP") 12 (pertaining to utility line construction). See Exhibit 1 (NWP approval letter from
Corps). Stormwater NPDES permits and CWA § 404 permits are mutually exclusive when it
comes to controlling discharges of fill material in stream crossings. See Coeur Alaska, Inc. v.
S.E. Alaska Conservation Council, 557 U.S. 261, 270-71 & 286 (2009) (Placement of fill
material in the lake should be permitted under CWA § 404, rather than § 402. "[Plaintiff's]
argument, that § 402 applies to this discharge and not § 404, is not consistent with the statute and
regulations. .. ."). The Supreme Court made it clear that only one permit—issued under § 404—
was required for the discharge of the fill material. Coeur Alaska, 557 U.S. at 276-77 ("if the
discharge is fill, the discharger must seek a § 404 permit from the Corps; if not, only then must
the discharger consider whether any EPA performance standard applies, so that the discharger
requires a § 402 permit from the EPA.").
Mountaineer's stream crossings, which involve the discharge of dredged or fill
material, are being authorized under NWP 12—a § 404 permit. Couer Alaska demonstrates that
only one permit—issued under CWA § 404 is required for the discharge of fill material.
Mountaineer's stream crossings do not implicate its registration to use the Oil & Gas
5 4844-5833-0214.v1 Construction Stormwater General Permit(No. WVR31 0880). Accordingly, none of Appellants' claims regarding stream crossings are properly brought before this Board.
B. Mountaineer was not required to provide a drilling contingency plan as a condition of its Construction Storm Water Permit.
Appellants state that "[t]he Permit application fails to provide a contingency plan for underground borings." See Amended Notice of Appeal, ¶ 6.c. The Amended Notice of
Appeal does not, however, cite the source of this implied requirement that the drilling contingency plan be submitted with an application for the stormwater permit registration.
Horizontal Directional Drilling ("HDD") refers to a stream crossing method whereby the pipeline is passed under a stream, as opposed to the "open cut" method, which is a dry ditch crossing using a cofferdam. The HDD method utilizes drilling mud to lubricate the drill bit and conveys drill cuttings back to drill entry point. The drilling mud is pumped under pressure through the inside of the drill pipe and flows back to the drill entry point along the outside of drill pipe with the drill cuttings. A concern over the use of the HDD method is the potential for drilling mud to escape through cracks in the strata, resulting in an inadvertent release to surface waters. Users of NWP 12 who propose to employ HDD must prepare a contingency plan outlining measures to minimize potential impacts on surface waters in the event of an inadvertent return. Neither the HDD process nor the HDD contingency plans implicate stormwater runoff in any way.
WVDEP previously addressed concerns regarding the potential for Horizontal
Directional Drilling ("HDD") blowouts, or inadvertent returns, during the public comment process on Mountaineer's request for permit coverage and explained that "HDD Blowouts ...
[are] beyond the scope of the Oil and Gas Stormwater Permit, however prior to commencing
HDD operations, Mountaineer Gas Company will coordinate with the drilling contractor and
6 4844-5833-0214.v1 develop a HDD Contingency Plan to address any issues that may occur." See CR, p. 1858
(General Comments Responses, § G).
As with stream crossings, contingency plans for inadvertent returns are covered
by the CWA § 404 Permit. The Corps has contingency plan requirements for inadvertent returns
embedded within NWP 12, while WVDEP's requirements are found in the § 401 Certification
for NWP 12. WVDEP's § 401 certification includes a requirement for an Inadvertent Return
Contingency Plan to be kept on site and made available on request. See Nationwide Permits for
the State of West Virginia, LRH-2016-0006-WV, Special Condition H, p. 20.6 The Corps'
regional conditions for NWP 12 require that the Preconstruction Notice to the Corps include a
contingency plan for inadvertent returns for Section 10 (navigable in fact) waters. See
Nationwide Permits for the State of West Virginia, LRH-2016-0006-WV, Specific Regional
Condition, §b, p. 19.
The Oil and Gas General Stormwater Permit does not require Mountaineer to
produce a contingency plan in association with the NPDES permit. Even the § 401 certification
for NWP 12 only requires Mountaineer to provide the contingency plan to WVDEP upon
request. Thus, the "failure" of the Oil and Gas Stormwater Permit application to include the
contingency plan cannot serve as a basis to modify or reverse WVDEP's decision to grant
Mountaineer's registration.
C. WVDEP did not err by failing to require a riparian buffer as part of Mountaineer's general permit registration.
Appellants claim that "[t]he Department arbitrarily and unreasonably failed to
require riparian buffers between Sleepy Creek and Back Creek and pipeline construction, in
6 See Nationwide Permits for the State of West Virginia, LRH-2016-0006-WV (May 17, 2017) available at http://vvww. lrh.usace. army. mil/P ortals/38/Users/007/87/1287/20170512%2ONWP%202017%2OLRH%2OPN%2 OW V-WQC-2. pdflver=2017-06-01-145846-977.
7 4844-5833-0214.v1 contradiction of the Sleepy Creek Watershed Based Plan and the Back Creek Watershed Based
Plan." Amended Notice of Appeal, ¶ 7. This claim should be dismissed for three reasons: (1)
WVDEP is not required to enforce local watershed based plans;(2) even if WVDEP did enforce
watershed based plans, these particular plans do not impose a riparian buffer on construction
projects; and (3) the suggestion that there is no riparian buffer requirement applicable to the
Project is simply incorrect.
1. WVDEP is not required to enforce local watershed based plans.
The Amended Notice of Appeal fails to cite any legal authority for the proposition
that a local watershed based plan creates a legally binding requirement on Mountaineer. The
watershed based plans themselves do not even purport to create binding BMP requirements
applicable to the general public. For instance, the Back Creek Watershed Protection Plan
("BCWP") states that "[t]his document can be used by state agencies or stakeholders to secure
funding to implement solutions and protect key conservation areas." See BCWP, p. 4.7
In claiming that WVDEP erred in failing to enforce the terms of local watershed
based plans, Appellants misunderstand the nature of watershed based plans. Watershed based
plans are not designed to be a list of proscriptive limitations or prescriptive water pollution
control measures enforceable against the general public. Rather, the purpose of the documents is
to formulate improvement plans for impaired watersheds. These plans are authored by non-
profit conservation groups—not WVDEP—with the primary goal of securing grants for
watershed improvement projects under CWA § 319 (33 U.S.C. § 1329). Under Section 319,
states, territories, and tribes receive grant money from EPA that supports a wide variety of
activities including technical assistance, financial assistance, education, training, technology
7 haps://dep.wv.gov/WWE/Programs/nonptsourceMBP/Documents/WP/BackCreek WPP.pdf.
8 4844-5833-0214.v1 transfer, demonstration projects and monitoring to assess the success of specific nonpoint source implementation projects.8
The § 319 program allows EPA to fund state efforts to clean up nonpoint source drainage, and states can enter into voluntary agreements with other entities, such as non-profit watershed groups, to carry out the work. WVDEP's Nonpoint Source ("NPS") Program administers applications for § 319 grants, which are ultimately awarded by EPA Region III. Any party seeking a § 319 grant must submit a watershed based plan to qualify for funding for the proposed water improvement project.
Beyond administration of the grants, WVDEP's involvement in the creation of the plans is fairly limited: "[t]he NPS Program may be able to provide technical and/or financial assistance for plan development."9 WVDEP is not required, however, to enforce the provisions of watershed based plans.
2. Even if WVDEP was required to apply local watershed plans in issuing NPDES permits, neither of these particular plans require construction projects to maintain a riparian buffer zone.
Neither the Sleepy Creek Watershed Protection Plan ("SCWP") nor the BCWP is aimed at or even mentions construction activities. "The TMDL for Sleepy Creek identifies fecal coliform bacteria as the major pollutant." See SCWP, p. 2.1° The SCWP identifies agricultural land use as the major non-point source contributor of fecal coliform; therefore, "only the
`riparian acres' of pasture and cropland are included in the load reduction spreadsheet." Id., p. 6.
The SCWP discusses the riparian buffer only in the context of agricultural applications, as evidenced by the references to pesticides and cattle grazing. See SCWP, pp. 8-9. Likewise, the
8 See https://www.epa.gov/nps/319-grant-program-states-and-territories (providing overview of § 319 program). 9 See https://dep.wv.gov/WWE/Programs/nonptsource/WBP/Pages/planning.aspx.
I° https://dep.wv.uov/WWE/Programs/nonptsource/WBP/Documents/WP/SleepyCreek WBP.pdf.
9 4844-5833-0214.v1 BCWP's description of the riparian buffer is also limited to the agricultural context. See, e.g.,
BCWP, p. 18 (describing riparian buffer as intercepting runoff from adjacent fields to reduce pesticides and bacteria). Neither of the plans recommends any sort of riparian buffer for construction projects.
3. WVDEP's § 401 certification imposes a 25-foot riparian buffer on all projects authorized under NWP 12.
Finally, to the extent the Amended Notice of Appeal states that WVDEP "failed to require riparian buffers between Sleepy Creek and Back Creek and pipeline construction," it is simply wrong. While WVDEP did not impose a riparian buffer as part of the Oil & Gas
Construction Stormwater General Permit, it did impose a limited riparian buffer as part of the
§ 401 certification for NWP 12. Special Condition N of the § 401 certification requires that waterbody banks be returned as closely as practicable to preconstruction contours by revegetating the riparian buffers with native flora. Users of NWP 12 must limit routine mowing or clearing adjacent to waterbodies in order to allow a riparian strip at least 25 feet wide to form after initial construction activities. See Nationwide Permits for the State of West Virginia, LRH-
2016-0006-WV, p. 21.
D. Mountaineer's Chesapeake Bay Addendum did not fail to furnish a post forest acreage amount that differs from the pre-development amount.
Appellants allege that "[t]he Department arbitrarily and unreasonably accepted the Permittee's application as complete, despite the Permittee failing to furnish a post forest acreage amount that differs from the pre-development amount in its Chesapeake Bay Addendum, in violation of W.Va. Code § 22-22-9." See Amended Notice of Appeal, ¶ 11. The Chesapeake
Bay Addendum is a form that must be submitted along with any site registration application or notice of intent to be covered under one of the general stormwater permits for a construction
10 4844-5833-0214.v1 project in the Chesapeake Bay watershed (Berkley, Grant, Hampshire, Hard, Jefferson, Mineral,
Morgan or Pendleton counties). The Addendum requires a projection of the forested acreage in regulated watersheds both before and after project development. Mountaineer's original
Addendum submittal DID inadvertently include identical pre- and post-development forested acreage. However, as discussed below, WVDEP caught the error and required Mountaineer to correct it prior to approving Mountaineer's registration to use the General Permit.
Under "Existing Land Use," Mountaineer's initial Chesapeake Bay Addendum listed 142.8 forested acres and stated that the "Proposed Land Use" forested acres would be
"same as existing." See Exhibit 2 (attached). On January 29, 2018, WVDEP issued the following correction to Intervenor:
Provide a corrected Chesapeake Bay Addendum as the Existing Land Use provided as 142.8 acres of Forest is not the "Same as existing" for the Proposed Land Use in the same Forest category. Also, in the Unknown Land Use 69.9 acres is listed, there has to be known land uses for the project.
See Exhibit 3 (attached).
Mountaineer subsequently submitted a revised Chesapeake Bay Addendum, which is part of the certified record. See CR, p. 1713. The "Existing Land Use" in the revised addendum was recalculated to take the entire disturbed area into account and to reclassify the
69.9 acres previously identified as "unknown land use." In the current Chesapeake Bay
Addendum approved by WVDEP, existing forest acres is listed as 211.7, and projected post- project forest acreage is listed as 205.68. Id.
WVDEP highlighted this correction during the public comment process in response to a comment by the West Virginia Rivers Coalition that the pre- and post-development forested land amounts were identical. CR, p. 1890. In response, WVDEP stated that "[t]he
11 4844-5833-0214.v1 Chesapeake Bay Addendum form was corrected." CR, p. 1892. Thus, Paragraph 11 of the
Amended Notice of Appeal can be dismissed without the need for consideration of additional evidence because it is demonstrably incorrect.
IV. CONCLUSION
Each of the appeal issues listed above raises issues beyond the scope of the general permit at issue or beyond the scope of the Water Pollution Control Act. No amount of evidence can change that, and appellees should not be forced to prepare for a hearing on issues not properly before the Board. Accordingly, the Board should dismiss those claims set out in paragraphs 6.a., 6.b., 6.c., 6.f, 7, & 11 of Appellants' Amended Notice of Appeal.
Respectfully submitted,
MOUNTAINEER GAS COMPANY WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION By Counsel By Counsel
(Qcv. U Cuv e -C2- i v/14_3 ROBERT G. McLUSKY, WVBN 2489 JA N WANDLING CHRISTOPHER M. HUNTER, WVBN 9768 OFFICE OF LEGAL SERVICES JACKSON KELLY,PLLC 601 57th Street SE 1600 Laidley Tower Charleston, WV 25304 Post Office Box 553 Counselfor West Virginia Department of Charleston, West Virginia 25322 Environmental Protection Counselfor Mountaineer Gas Company
12 4844-5833-0214.v1 WEST VIRGINIA ENVIRONMENTAL QUALITY BOARD CHARLESTON,WEST VIRGINIA
SUSAN TAYLOR DROPP and LAURA STEEPLETON,
Appellants, v. Appeal No. 1 8-01 -EQB
DIRECTOR,DIVISION OF WATER AND WASTE MANAGEMENT,DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Appellee, and
MOUNTAINEER GAS COMPANY,
Proposed Intervenor/Appellee.
CERTIFICATE OF SERVICE
I, Christopher M. Hunter, hereby certify that a true and exact copy of the foregoing JOINT MOTION TO DISMISS OR FOR SUMMARY JUDGMENT ON CERTAIN
CLAIMS OF APPELLANTS was caused to be served upon the following via United States mail, postage pre-paid, this 21st day of May,2018.
Rose Monahan Susanne E. Thompson Fair Shake Environmental Legal Services P.O. Box 2000 3495 Butler Street, Suite 102 Martinsburg, West Virginia 25402 Pittsburgh, Pennsylvania 15201 [email protected] [email protected]
A / CHRISTOPHER M. HUNTER
4844-5833-0214.v1