For the second time in less than a year, the Dominion Pipeline Monitoring Coalition (DPMC) has started a legal proceeding to compel the Virginia Department of Environmental Quality (DEQ) to obey the state’s Freedom of Information Act (FOIA).

DPMC seeks information justifying a DEQ decision that affects regulation of utility lines constructed through streams and wetlands in Virginia. The DEQ responded that it was not ready to supply that information in the time required.

The DEQ announced its intention on April 7th to issue a blanket Clean Water Act section 401 certification for pipelines that are covered by the U.S. Army Corps of Engineers’ Nationwide Permit number 12. This followed the DEQ announcement on April 6th that it would conduct individual Clean Water Act section 401 reviews for the Atlantic Coast and Mountain Valley Pipelines. The next day’s announcement that the state would, none-the-less, issue a blanket 401 Water Quality Certification for the NWP 12 will still enable utility projects that are very damaging to our waters – without thorough reviews and public involvement.

DPMC continues to oppose both the general NWP 12 and blanket state 401 certification.

DPMC submitted its FOIA request on April 7th, the day the DEQ announced its blanket Water Quality Certification. The DPMC request asked for evidence that the DEQ had conducted the required analysis to ensure covered activities would uphold state water quality standards.  The DEQ then claimed that the “complexity” of the request justified an extension that would more than double the time required for DPMC to get the information. DPMC asserts that DEQ lacks a proper basis for the time extension and is prepared to make that case in court.

Accordingly, on April 12th, DPMC delivered a Petition for Writ of Mandamus and Injunctive Relief to DEQ Director David Paylor and the Department’s FOIA coordinator, demanding that DEQ meet the legal requirement that it provide records within five work-days after a request. The Petition was served on the DEQ officials in advance of filing in the state Circuit Court for the City of Richmond.

The FOIA rules are designed to give Virginian’s “ready access” to information about our government and the five-work-day deadline for replying to requests enforces that intention. There are exceptions to the 5-day requirement but, as the law states, additional time is justified only if it “is not practically possible to provide the requested records or to determine whether they are available within the five-work-day period.” Code of Virginia § 2.23704.B.4.

DPMC investigator, David Sligh, wrote in an email to DEQ on April 10th in response to the Department’s claim that the request was too “complex” to be filled in the standard time:

“I do not seek any records beyond those that were relied upon to make that decision which, by definition, would be in the possession of and easily accessible to those DEQ employees who helped counsel the Director in making the decision or directly participated in the decision-making process. . . . either records were used as support for this decision or they were not – there should be no work involved in determining “whether they are available.” If they are not at-hand, then they were clearly not used. I do not seek records the staff may search out and present as part of the basis for the decision when they were not used as such.”

What is especially troubling about DEQ’s efforts at delay in a case like this, is the idea that the agency would not have ready access to the evidence they supposedly used in making an important decision. As an active participant in that regulatory process, DPMC should have been able to get this information automatically – with no formal request required.

It is unlikely that Dominion or EQT have to jump through legal hoops and face delays to get whatever documents they want from DEQ.  We insist on the same consideration and respect that is afforded the pipeline companies.

DEQ Certification Announcements – April 6 and 7
Richmond Times Dispatch coverage – April 6
DPMC FOIA to DEQ – April 7
DPMC Circuit Court Petition – April 12