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Email Exchange Between Virginia DEQ and Wild Virginia Conservation Director Raises Troubling Questions

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The following exchange is between David Sligh of Wild Virginia and the Virginia Department of Environmental Quality (DEQ),  regarding DEQ’s handling of mail sent to the State Water Control Board. The exchange concerns a report issued by Wild Virginia and the Dominion Pipeline Monitoring coalition, which we published here. The report documented DEQ’s failure to consider the impact that construction of Atlantic Coast and Mountain Valley Pipelines would have and already have had on Virginia’s water quality.

Now, the email exchange; note that I’ve added bolding for emphasis of some things that really jumped out at me in this exchange, such as:

1) David Sligh’s question to DEQ, “can you explain the reason you have chosen not to give Board members the document itself, in either or both instances?”;

2) David Sligh’s question to the DEQ, “If the Board has set or agreed to a protocol by which DEQ is to screen mail sent to it, could you explain what that protocol is?”;

3) DEQ’s email to Sligh, stating that “Your email, without the attachment, has been forwarded to the Board members”;

4) Sligh’s request to DEQ to “Please deliver this email and the attached document to the members of the State Water Control Board. The attachment contains a summary of the comments submitted to address the sufficiency of NWP 12 to meet Virginia standards, in response to the comment period that ended June 15, 2018.”;

5) Sligh’s comment that “Citizens have been promised that DEQ would make a summary of the comments available but, to our knowledge such a document has not been released.”; and

6) Sligh’s point about how, “Given that the Board meeting is scheduled less than one week from this date, on August 21, we believe it is appropriate and necessary that the members be provided as much information about the comments as possible and as soon as possible, so they can be prepared to consider the issues at their meeting.”

So…can someone please explain to me by what authority does Virginia’s DEQ take it upon itself to not attach the report — and for what purpose? Even more troubling is that we learned yesterday (in an email from a DEQ spokesperson provided to BV) that DEQ will not finish its own summary until next Tuesday (August 21), the day of the Board meeting.  Based on this, it sure seems like they are trying to insulate the Board from public comments. Any other plausible explanations, or is the proverbial “fix” in?

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On Friday, August 17, 2018, 6:04 AM, david@wildvirginia.org wrote:

Thank you for the reply. For clarification, did DEQ transmit either the original or the second version of the attachment or neither? I have been asked by members of the press whether our summary was sent to Board members and would like to be able to inform them accurately.

Also, can you explain the reason you have chosen not to give Board members the document itself, in either or both instances?

Citizens and the press would like to know whether they can use the address that is provided for the Board with confidence that what they send will be delivered. If the Board has set or agreed to a protocol by which DEQ is to screen mail sent to it, could you explain what that protocol is? And wouldn’t it be appropriate to post a note on the website with the address that explains the rules governing communications with the Board so senders can know whether mail will go through or not?

If the Board has not set or agreed to a policy for DEQ to screen mail sent to the Board, can you please tell me under what rationale and authority DEQ takes these actions? I am aware of only one legal or regulatory constraint on communication between Board members and the public – when an issue is being addressed through a formal hearing process, I believe the APA prohibits ex parte communications. Are there other such rules of which I am unaware?

Thank you and I look forward to your reply.

Dave Sligh

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Sent from Yahoo Mail for iPhone
On Friday, August 17, 2018, 5:21 AM, Citizen Boards, rr <citizenboards@deq.virginia.gov> wrote:

Mr. Sligh.  Your email, without the attachment, has been forwarded to the Board members; and the Board has been advised that if any member requests the attachment, it will be forwarded to all the members.

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On Thu, Aug 16, 2018 at 12:51 PM, david@wildvirginia.org <david@wildvirginia.org> wrote:

I am sending a replacement version of the document I sent yesterday. I noticed that the hyperlinks to comments in the documents were not wording and corrected that problem.

Please transmit this document to the Board members instead of or in addition to the version previously sent and please let me know if it is provided to the Board members.

Thank you.

Dave Sligh

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On Wednesday, August 15, 2018, 12:31:29 PM EDT, david@wildvirginia.org <david@wildvirginia.org> wrote:

Please deliver this email and the attached document to the members of the State Water Control Board. The attachment contains a summary of the comments submitted to address the sufficiency of NWP 12 to meet Virginia standards, in response to the comment period that ended June 15, 2018.

This summary is based on the body of comments that DPMC acquired from DEQ. It is not a new comment but included quotations, descriptions, and compilations of comments submitted during the prescribed period. The report itself is accessible at Summary of Public Comments to SWCB NWP 12 – Google Drive

Summary of Public Comments to SWCB NWP 12 – Google Drive

and all of the comments we received from DEQ are included in the general folder at https://drive.google.com/ drive/folders/ 1Z9oownA1E95k6NHCS_cGN- zS8nz6QerU

Citizens have been promised that DEQ would make a summary of the comments available but, to our knowledge such a document has not been released. Given that the Board meeting is scheduled less than one week from this date, on August 21, we believe it is appropriate and necessary that the members be provided as much information about the comments as possible and as soon as possible, so they can be prepared to consider the issues at their meeting.

We have been informed at times that DEQ has chosen to withhold certain documents from the Board that were sent through this email address. Please inform me whether this email and attachments are passed to them. Again, we believe it is appropriate that we be allowed to submit this information to the Board members for two reasons:

First, this contains new information that the public clearly could not have had available during the comment period and such materials have usually been accepted at or before the Board meetings. We’ve been told we won’t be allowed to present information at that meeting, so it seems appropriate that we should be allowed to submit it now.

Second, it is also customary and in accordance with the Board’s rules for conduct of its meetings that the public is allowed to comment on staff’s response to public comments. As noted, we have not been given that chance nor does it appear we will have that opportunity before or at next week’s meeting.

Please let me know how you will proceed in communicating this information to the Board.

Dave Sligh