By John McFerrin
The West Virginia Highlands Conservancy has joined with the West Virginia Rivers Coalition (which led the effort) and seventeen other organizations in criticizing the actions taken by the West Virginia Department of Environmental Protection against the Rover Pipeline. The groups consider the actions to be insufficiently vigorous.
The Rover pipeline is mostly in Ohio and Pennsylvania but does cross West Virginia’s northern panhandle.
Beginning in April, 2017, and continuing through April, 2018, West Virginia Department of Environment Protection inspected the Rover Pipeline, issuing fourteen notices of violation and two cease and desist orders. Rover created conditions not allowable in state waters ninety two times. Most of the violations were for poor (or non-existent) sediment control.
After this year of chronic noncompliance, the DEP decided to take what it considered to be serious enforcement action. It bundled together the violations into what is called a Consent Order. A Consent Order is an agreed upon document in which the company agrees to pay a fine and promises, in a nutshell, to not do it again.
Consent Orders such as this are made available for public comment. Given the opportunity, the groups had a lot to say. So far as the substance of the violations were concerned, the groups said this:
Rover was repeatedly cited for the same violations. Specifically, Rover created conditions not allowable in state waters approximately 92 times. They were cited for failing to prevent sediment-laden water from leaving the site approximately 14 times at numerous locations each time. They were cited 13 times for failing to comply with their approved Stormwater Pollution Prevention Plan. Silt fences, filter socks, water bars, water bar outlets and other erosion control devices were either not installed at all, not installed properly, or not maintained as required. They failed to provide stone access entrances at their work sites and then failed to clean the resulting debris from the road on several occasions. In multiple instances, they used inappropriate Best Management Practices (BMPs); for example, using sheet flow BMPs where concentrated flow BMPs were needed. They used straw bales for erosion control which are not approved erosion control devices. They removed the erosion control devices prior to the soil being stabilized. They failed to stabilize exposed soil after 21 days of inactivity. They did not protect fill slopes allowing earthen slips to occur. They then failed to report the non-compliant slips endangering health and the environment. The repeated nature of these violations is inexcusable. It signals that this is a company that harbors total disregard for the law and the people who stand to be adversely impacted by that disregard. Based on these actions, Rover does not deserve the privilege of doing business in West Virginia.
Had they conducted their routine inspections, they could have corrected these errors; however, they even failed to conduct inspections every seven days as required by their permit. As a result of these repetitive and egregious negligence, hundreds of sites in approximately 35 streams were flooded with dirt and debris.
With their repeated negligence and blatant disregard for the environmental laws they agreed to abide by, they should receive the most severe monetary penalty. They should also be banned from applying to construct further projects in the State of West Virginia.
In cases such as this the fine assessed is the result of a formula. The formula takes into account such things as the number of violations and their severity. Application of this formula resulted in a fine of $430,030. The formula also allows for adjustments for
- Loss of enjoyment of the environment
- Size of the violator
- Economic benefits derived by the responsible party
- Public interest
- Staff investigative costs
The Order did not make any adjustments for any of these. Rover did get a $34,400 discount for “Cooperation with the Secretary”. The Order does not explain how we came to live in such a topsy turvy world where someone can commit the same violations over and over for a year, ignore anything the Department of Environmental Protection says, and end up with a discount for “Cooperation with the Secretary.”
A fine of $430,030 sounds like a substantial amount until one considers the party involved. The Rover Pipeline has construction costs of $4.2 billion. A fine of $430,000 is only one ten thousandth of the cost of the project. Energy Transfer Partners, the parent company of Rover, had $29 billion in annual revenue in 2017and grossed $6 billion in profits. The regulations allow for penalties to be adjusted for the “Size of violator.” In their comments the groups insist that the penalty be adjusted for the size of the violator.