by Jonathan Sokolow
In an outrageous display of arrogance and disregard for Virginia law, DEQ Deputy Director Chris Bast has revealed that DEQ believes the State Water Control Board – which has broad authority under Virginia Law to regulate our water and to set and enforce Virginia State Water Quality Standards – is powerless to revoke the permits the Board itself issued under Section 401 of the Clean Water Act for the Atlantic Coast and Mountain Valley Pipelines.
Let’s try that again. DEQ says The State Water Control Board can issue Section 401 permits for those pipelines, but it cannot revoke them.
The reason, according to a recently released email (see the bottom of this post) from Chris Bast, Deputy Director of DEQ, is that the Board can only revoke a permit if the permittee refuses to comply with the permit (an unlikely event) or the permittee violates a “stop work order” issued by DEQ. The key section of Bast’s email is this:
“Withdrawing the 401 permit would require a hearing by the State Water Control Board (following a public notice period). There are two potential circumstances where this could occur. In the first case, a hearing would take place after the failure of the developer to make the necessary changes identified by DEQ after the issuance of a stop work instruction. Second, a consistent refusal to proceed with construction in accordance with the rules of the 401 permit would also result in a hearing.”
Translated: If DEQ NEVER ISSUES a stop work order – and thus far it has refused to do so – DEQ believes that it can prevent the Water Control Board from revoking a permit that the Board ITSELF issued- ever.
If that sounds crazy, it’s because it IS crazy.
State law specifically allows the Water Board to “issue, revoke or amend certificates” under a whole host of conditions. These include, among many other circumstances, these:
- The company “has violated any regulation or order of the Board, any condition of a certificate, any provision of this chapter, or any order of a court, where such violation results in a release of harmful substances into the environment or poses a substantial threat of release of harmful substances into the environment or presents a hazard to human health or the violation is representative of a pattern of serious or repeated violations which, in the opinion of the Board, demonstrates the owner’s disregard for or inability to comply with applicable laws, regulations, or requirements;” or
- “There exists a material change in the basis on which the permit was issued that requires either a temporary or a permanent reduction or elimination of any discharge controlled by the certificate necessary to protect human health or the environment.”
Several days ago, we revealed that DEQ intends to muzzle the public at the State Water Control Board at its August 21 meeting. Now it appears that DEQ intends to muzzle the State Water Control Board itself. That should concern everyone – not just opponents of these unnecessary and destructive pipelines – but anyone who believes in the power of citizens and the citizen boards established under Virginia law.
It should trouble the Board itself.
Please, members of the State Water Control Board, stand up for your power under Virginia law to protect all of us and the water upon which we depend. It is your right, and your duty, to take control of this process.
Stand up for yourself, so you can stand up for all of us.
From: Bast, Christopher
Date: Thu, Aug 2, 2018 at 7:19 PM
Subject: Re: Follow-up on Conference Call Last Week
To: Bill Wolf
Cc: David Paylor, Trieste Lockwood
Thank you for taking the time to have this additional dialog with us. So sorry for the delay in this response but I wanted to make sure that I could get you full and accurate information.Understandably, there is a tremendous amount of interest in the regulatory process regarding MVP and ACP. We hosted the recent call with you and the stakeholder group because we wanted to have an open discussion and answer questions about that process, the monitoring and enforcement actions that are available to DEQ, and the scope of our authority.
I’m happy to provide some information related to your questions below.First, there is no relationship between the actions DEQ may take and the referenced MOA. DEQ did not negotiate the MOA, it is completely independent from the agency’s responsibilities, and it does not impact regulatory action.
At its previous meeting in April, the State Water Control Board expressed their prerogative that they would not include additional public comment at the upcoming meeting on Aug. 21. In accordance with their instruction, the meeting is currently being planned with this in mind.
A stop work instruction may be issued when there is substantial adverse impact to water quality or an imminent and substantial adverse impact is likely to occur. Regarding MVP, the operative question and scope of our regulatory authority is whether the BMPs hold. If there is a collapse of the BMP structures AND a refusal to fix them on the part of the developer, then that would be a condition which would indicate a need for a stop work instruction. The work suspension agreement was put in place earlier this summer because we identified systemic problems with the BMPs. However, had MVP not agreed to fix these problems, then we could have used our stop work authority.
On a related note, DEQ worked to institute stop work instruction authority during the 2018 General Assembly session. Besides our limited ability to assess fines, we needed more tools in our toolbox to ensure water quality remains protected in accordance with state law.
Withdrawing the 401 permit would require a hearing by the State Water Control Board (following a public notice period). There are two potential circumstances where this could occur. In the first case, a hearing would take place after the failure of the developer to make the necessary changes identified by DEQ after the issuance of a stop work instruction. Second, a consistent refusal to proceed with construction in accordance with the rules of the 401 permit would also result in a hearing.
I hope these answers can help provide some clarity into what is, at times, a complicated and ambiguous process.