WEST ENVIRONMENTAL QUALITY BOARD CHARLESTON,

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 .

3. The Project will cross both Tier 2 streams, including Swim Run, , Gough

Run, and , and Tier 3 streams, including Big Run and Dry Run.

4. The Project will utilize horizontal directional drilling (HDD) under 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

to the 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 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 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 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 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, 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