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Judge approves $2.15 million settlement of lawsuit against Mountain Valley Pipeline

Judge approves $2.15 million settlement of lawsuit against Mountain Valley Pipeline

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A Mountain Valley Pipeline construction site is seen along U.S. 460 near Elliston in 2019.

Mountain Valley Pipeline will pay $2.15 million for the environmental damage it has caused so far in building a natural gas pipeline through Southwest Virginia, while facing additional penalties for any new violations that may occur.

Those were the conditions of a settlement, approved this week, of a lawsuit brought against the company by state regulators.

Attorney General Mark Herring, who filed the case a year ago on behalf of the Virginia Department of Environmental Quality and the State Water Control Board, called the financial penalty one of the toughest ever imposed by the state in such a case.

The consent decree signed by Henrico County Circuit Judge Richard Wallerstein on Wednesday calls for court-ordered compliance and supervision of future construction, providing more stringent oversight of Mountain Valley than what would be provided under normal DEQ enforcement.

“This resolution really sets a new standard for resolution of environmental damages cases in Virginia,” Herring said in a statement released Thursday.

Pipeline opponents called the agreement too lenient, saying that the $2.15 million fine amounts to just 0.038% of the project’s total cost of $5.5 billion.

“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,” the Protect Our Water, Heritage, Rights coalition said in a written statement.

After a draft agreement was announced in October, DEQ solicited public comments. POWHR was one of 207 organizations or individuals to submit input. All but two of the commenters opposed the pipeline in general or the settlement in particular.

Donald Judy of Palmyra urged the state to take a stronger stand against energy companies, “all of whom view Virginia and its environment as little more than a fatted calf, theirs by some unquestionable right, and ripe for the slaughter.”

DEQ provided a summary of the comments to the judge.

Some of the suggestions — such as for a larger financial penalty, alternative compliance measures or even an outright stop to pipeline construction — were beyond the authority of DEQ and the State Water Control Board, Assistant Attorney General David Grandis wrote in a motion asking Wallerstein to approve the settlement.

Other written statements were “merely reflective of comments previously submitted to and considered by the State Water Control Board during an exhaustive regulatory process prior to commencement of the project or since the project got underway,” Grandis wrote.

Many of the public comments “would not be agreed to by all the parties,” the motion stated, which would threaten to delay a settlement.

“Mountain Valley has worked diligently to address all of the issues raised by the Virginia Department of Environmental Quality through Notices of Violation … most of which were the result of the record rainfall during 2018 in the project area,” company spokeswoman Natalie Cox wrote in an email Thursday.

The lawsuit had accused Mountain Valley of more than 300 violations of state regulations meant to curb erosion and sediment.

Construction along steep mountain slopes, where trenches as deep as 10 feet were dug for the pipeline, dislodged harmful sediment that was washed by storm water into nearby steams and onto the property of adjacent landowners.

Although issues with sedimentation, stream crossings and the pipeline’s impact on endangered species have led to the suspension of three sets of federal permits, Mountain Valley said it hopes to receive new approvals in time to complete construction by the end of next year.

Work has largely been stopped for the winter season. When it resumes in the spring, construction crews will face additional scrutiny as a result of the consent decree.

Mountain Valley has agreed to hire independent monitors to conduct inspections beyond what had been previously required by the state. If there are additional problems after Sept. 18, 2019 — the cutoff date for violations covered by the $2.15 million fine — Mountain Valley will face “much more significant consequences,” the attorney general’s office said.

As for complaints that the company was getting off too easy, a statement from the office noted that the financial penalty was more than eight times larger than a $266,000 fine that Mountain Valley paid to regulators in West Virginia, where the 303-mile pipeline begins.

The penalty paid to Virginia will go toward supporting environmental protection and enforcement activities.

On Oct. 15, the Federal Energy Regulatory Commission ordered that all new construction of the pipeline cease while the most recent lawsuit, filed by environmental groups who said endangered species are being threatened, is resolved.

But FERC allowed stabilization and erosion control work to continue. Opponents said that allowed Mountain Valley to continue actual construction “under the guise of stabilization,” causing additional problems with erosion and sedimentation.

However, a round of inspections by FERC in late November revealed no major problems, the agency said in online filings.

Meanwhile, FERC and the U.S. Fish and Wildlife Service continue to reexamine a biological opinion from 2017, when the service found that pipeline construction would not pose a serious threat to endangered species of bats and fish in its path, including the Roanoke logperch.

Wild Virginia and six other environmental groups challenged that determination in a legal action filed in August with the 4th U.S. Circuit Court of Appeals.

The review that followed, putting the lawsuit on hold, was due to be completed on Tuesday. In a letter to FERC dated the same day, the Fish and Wildlife Service said the deadline had been extended by agreement to Feb. 10, 2020.

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Laurence Hammack covers environmental issues, including the Mountain Valley Pipeline, and business and enterprise stories. He has been a reporter for The Roanoke Times for more than three decades.

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