WEST VIRGINIA ENVIRONMENTAL QUALITY BOARD CHARLESTON, WEST VIRGINIA
LAURA STEEPLETON and SUSAN TAYLOR DROPP Appeal No. 18-01.EQB Appellants, v.
DIRECTOR, DIVISION OF WATER AND WASTE MANAGEMENT, DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Appellee,
And
MOUNTAINEER GAS COMPANY,
Proposed Intervenor/Appellee.
APPELLANT’S FIRST AMENDED APPEAL
Action Complained Of: Issuance of NPDES Permit No. WVR310880 to Mountaineer Gas
Company to construct an intra-state pipeline.
Relief Requested: Appellant therefore prays that this matter be reviewed and the Board grant the following relief:
1. Vacate NPDES/State Permit No. WVR310880;
2. All other necessary and appropriate relief.
Specific Objections: The specific objections to the action, including questions of fact and law to be determined by the Board, are set forth in detail in separate numbered paragraphs and attached hereto.
Background
1. The Eastern Panhandle Expansion Project (“Project”) is a pipeline project proposed by
Mountaineer Gas Company (“Mountaineer”) that will consist of the construction of a 23- mile 10-inch steel natural gas pipeline that will extend through Morgan and Berkeley
Counties.
2. The Project will disturb approximately two-hundred and forty-six (246) acres, resulting in
impacts to 14 wetlands, 1 pond, and 67 streams.
3. The Project will cross both Tier 2 streams, including Swim Run, Cherry Run, Gough
Run, and Tilhance Creek, and Tier 3 streams, including Big Run and Dry Run.
4. The Project will utilize horizontal directional drilling (HDD) under Sleepy Creek and
Back Creek, which are high quality streams.
5. The Project will cross approximately 5.3 miles of geologically sensitive karst terrain in
Berkeley and Morgan Counties.
The Parties
1. Appellant Laura Steepleton resides at 38 Hobday Court, Berkeley Springs, West Virginia
25411. Ms. Steepleton is dedicated to preserving and protecting the watershed, including
tributaries to the Potomac River and the surrounding area. She spends much of her time
with her children and other family members swimming and playing in Back Creek,
Cherry Run, Gough Run, and Warm Springs Run, as well as forging for wild ramps,
chanterelle mushrooms, and paw-paw fruit along Back Creek. She also enjoys fishing in
Sleepy Creek and Sleepy Creek Lake for large-mouth bass, bluegill, and channel catfish.
Ms. Steepleton is concerned about adverse impacts to water quality along the Project’s
proposed route.
2. Appellant Susan Taylor Dropp is a Morgan County resident and her address is 50 Mill
Farm Trail, Berkeley Springs, West Virginia 25411. The Project will be constructed
approximately one-fourth (1/4) mile from Ms. Taylor Dropp’s home, where it will cross Sleepy Creek.. Ms. Taylor Dropp’s home abuts Sleep Creek, and she spends time
walking along Sleep Creek with neighbors and swimming in Sleepy Creek. She also
enjoys taking photos of wildlife and wildflowers in and around Sleep Creek. She is
concerned that the Project will adversely impact Sleepy Creek, adversely impact her
private water well, and/or adversely impact endangered and vulnerable species that live
in and around Sleepy Creek.
3. The West Virginia Department of Environmental Protection, Division of Water and
Waste Management is the administrative agency tasked with the duty and responsibility
to administer and enforce West Virginia’s Water Pollution Control Act, W. Va. Code §
22-11 et seq., and its implementing regulations, and West Virginia’s Groundwater
Protection Act, W. Va. Code § 22-12 et seq., and its implementing regulations.
4. Permittee Mountaineer Gas Company is headquartered at 501 56th Street, SE, PO Box
5201, Charleston, West Virginia, 25361.
Objections to Permit
5. The Department arbitrarily and unreasonably failed to require an individual permit to the
Project, despite the fact that the proposed Project will involve land disturbance across a
very significant area or other unique impacts, including laying pipeline through karst
geology, in violation of Section G.1 of the General Permit.
6. The Department arbitrarily and unreasonably issued the Permit without Permittee having
demonstrated that the discharge or discharges covered by the Permit will not cause
violations of applicable water quality standards in violation of W.Va. Code. S.R. § 47-2-
4, including but not limited to: 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;
c. The Permit application fails to provide a contingency plan for underground
borings;
d. The Permit application fails to demonstrate that geologically sensitive karst areas
will be avoided or impacts mitigated. Applicant’s own expert submissions dated
February 16, 2017 state that the pipeline will cross approximately 5.3 miles of
karst terrain. They warn that “karst is a known geohazard,” and the “risk of
sinkhole or subsidence-induced damage to infrastructure installations does exist.”
Further, they clarify that their review was limited to surface karst features, but
karst features below ground may be present along the alignment of the proposed
pipeline and were not analyzed (GeoConcepts Engineering, Inc, REVISED Karst
Mitigation and Avoidance Plan, Appendix A (Feb 16, 2017.);
e. The Permit application fails to demonstrate that sufficient “Best Management
Practices” (“BPMs”) will be implemented to protect water quality standards.
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.
7. The Department arbitrarily and unreasonably failed to require riparian buffers between
Sleepy Creek and Back Creek and pipeline construction, in contradiction of the Sleepy
Creek Watershed Based Plan and the Back Creek Watershed Based Plan. 8. The Department arbitrarily and unreasonably issued the Permit without Permittee having
demonstrated that the Project will not violate West Virginia’s anti-degradation policy
pursuant to W.Va. Code S.R. § 47-2-4.
9. The Department arbitrarily and unreasonably issued the Permit without Permittee having
demonstrated that the covered discharge or discharges will not result in injury or
interference with existing stream uses, including the propagation of fish, shellfish and
wildlife, including threatened or endangered wildlife and plant species such as harperella,
Indiana and long-eared bats, and wood turtles, in violation of W.Va. Code. S.R. § 47-2-4.
10. The Department arbitrarily and unreasonably issued the Permit without Permittee having
demonstrated compliance with all local government stormwater requirements, as required
by the General Permit, including the Berkeley County Stormwater Management
Ordinance of 2016, in violation of Section G.4.e.2.B of the General Permit.
11. The 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.
Respectfully submitted,
Rose K. Monahan, Esq. Pa. ID No. 322807 Fair Shake Environmental Legal Services 3495 Butler Street, Suite 102 Pittsburgh, Pennsylvania 15201 (412) 904-1746 (office) (412) 291-1197 (fax) [email protected]
______Susanne E. Thompson (WVSB # 6967) P.O. Box 2000 Martinsburg, W. Va. 25402 (304) 820-2374 phone (877) 706-1678 facsimile [email protected] email
Counsel for Appellants