Widespread erosion during construction of the Mountain Valley Pipeline was caused by “extraordinary” rainfall and other uncontrollable forces of nature, attorneys for the company said Friday in response to a lawsuit filed by environmental regulators.
In its first detailed reply to a legal enforcement action brought by the Virginia Department of Environmental Quality and the State Water Control Board, the company asked a judge to dismiss some of the claims.
But the 28-page filing in Henrico County Circuit Court also indicated that Mountain Valley is interested in a “potential negotiated resolution” of a lawsuit that accuses it of violating environmental regulations more than 300 times.
It was unclear to what degree a settlement has been discussed.
A Mountain Valley spokeswoman did not immediately respond to questions. A spokeswoman for state Attorney General Mark Herring, who filed the lawsuit in December, said the office will answer the company’s filing in court.
Long before construction of the massive buried pipeline began last spring, opponents argued that digging trenches for the 42-inch diameter steel pipe across rugged mountain terrain and through pristine steams was asking for environmental trouble.
Inspections by DEQ have found that construction crews failed to prevent muddy water from flowing off pipeline construction easements, often leaving harmful sediment in nearby streams and properties.
But erosion and sediment control measures, which were approved by the state before work began, could not have anticipated a year in which more than 60 inches of rain fell along some parts of the pipeline’s 303-mile route, Mountain Valley stated in court papers.
“The alleged sediment discharges were caused by extraordinary, high-intensity storm events and flooding beyond MVP’s control,” its attorneys wrote.
Mountain Valley also raised a number of other defenses, including the argument that the court-ordered compliance requested by the state is not needed because the environmental damage has already been repaired.
The attorneys also contended that construction of natural gas pipelines is wholly regulated by the federal Natural Gas Act, and that state laws raised in Herring’s lawsuit are not applicable.
Although the lawsuit does not seek an exact monetary amount, Herring said in an earlier statement that he will seek “the maximum allowable civil penalties and a court order to force MVP to comply with environmental laws and regulations.”
Penalties in the case could be as high as $32,500 per day for each violation.
The legal action is based on dozens of inspections conducted by DEQ officials and employees of MBP, a private company hired by the state to assist in monitoring construction of the largest natural gas pipeline ever proposed for Southwest Virginia.
The first major sign of trouble came May 21, when state inspectors were called to Franklin County after heavy rains triggered a landslide on a steep construction zone, covering nearby Cahas Mountain Road with nearly a foot of mud.
About 100 yards south of the pipeline right of way, inspectors found a stream with a layer of sediment 1 to 11 inches deep, extending for more than 1,000 feet. In the coming months, similar discoveries were made along other streams in the Roanoke and New River valleys.
For months, pipeline opponents have been calling on state and federal officials to order a stop to construction.
The Federal Energy Regulatory Commission, the lead agency overseeing construction, issued a stop-work order last summer after a federal appeals court struck down a permit from the U.S. Forest Service that allowed the pipeline to cross through the Jefferson National Forest.
But construction on most parts of the pipeline was allowed to resume a month later. Since then, a second court ruling has put a stop to all work on stream crossings until new permits are issued by the U.S. Army Corps of Engineers.
In a recent letter to FERC, Giles County resident Steven Hodges asked why there had been no mention of the state’s lawsuit in filings with the regulatory agency.
“FERC is responsible to ensure environment-protecting compliance during construction,” wrote Hodges, whose property is being crossed by the pipeline.
“This compliance oversight has repeatedly been criticized as inadequate by numerous landowners, scientists, environmental groups and even unbiased observers. … The working principle surely seems to be: If the company is out of compliance, loosen the ‘conditions’ of the certificate order by rubber-stamping all variances to accommodate Mountain Valley’s inadequacies and failures.”