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E-mail Address: chunter@iacksonkellv.com

Writer's Fax No.: 304-340-1272

Direct Dial No.: 304-340-1203

Jime 21, 2018

Jackie D. Shultz

Clerk of the Board

Environmental Quality Board601 57th Street, SE

Charleston, WV 25304

Re: Susan Taylor Dropp. etal. v. WVDEP, Appeal No. 18-01-EQB

Dear Ms. Shultz:

On behalf of Mountaineer Gas Company and the West Virginia Department ofEnvironmental Protection, enclosed for filing are the original and six (6) copies of their JOINTRESPONSE IN OPPOSITION TO MOTION FOR STAY in the above-referenced appeal.

Sineerely yours,

CJ^ A f/<A)CHRISTOPHER M. HUNTER

CMH/sab

Enclosure

ce: Susanne E. Thompson, w/enc.Rose Monahan, w/enc.

Jason Wandling, w/enc.

4829-2197-8219.V1&*idgeport.WV • Charleston.WV • Martinsbur|.WV • Morgantown.WV ♦ Wheeling,WV !

Denver, CO • Crawfordsville, IN ♦ Evansvilie, IN • Lexington, KY • A<ron, OH • Pittsburgh, PA • Washington. DC

WEST VIRGINIA ENVIRONMENTAL QUALITY BOARDCHARLESTON, WEST VIRGINIA

SUSAN TAYLOR DROPP and

LAURA STEEPLETON,

Appellants,

DIRECTOR, DIVISION OF WATER ANDWASTE MANAGEMENT, DEPARTMENT

OF ENVIRONMENTAL PROTECTION,

Appeal No. 18-01-EQB

Appellee,

and

MOUNTAINEER GAS COMPANY,

Proposed Intervenor/Appellee.

JOINT RESPONSE IN OPPOSITION TO MOTION FOR STAY

1. INTRODUCTION

The West Virginia Department of Environmental Protection ("WVDEP") granted

Mountaineer Gas Company ("Mountaineer") approval to use the Oil & Gas Construction

Stormwater General Permit ("General Permit") for discharges of stormwater associated with

Mountaineer's "Eastern Panhandle Expansion Project" ("Project") on February 7, 2018.

Mountaineer began construction on the Project shortly thereafter. Appellants filed an appeal of

Mountaineer's General Permit registration on March 9, 2018 but did not file a motion to stay

Mountaineer's General Permit registration until three months after its initial appeal was filed—

June 18, 2018.

4811-9404-6827. vl

The Board should deny Appellants' motion because Appellants have failed to

establish entitlement to a stay pursuant to the four-part "comparative hardship" analysis West

Virginia's environmental boards utilize in deciding requests for injunctive relief.

II. LEGAL STANDARD FOR STAY

The proper standard for determining whether preliminary injunctive relief should

issue was set forth by the Supreme Court of Appeals of West Virginia in Jefferson County Bd. of

Ed. V. Jefferson County Ed. Ass'n, 393 S.E.2d 653 (W. Va. 1990). Cautioning that a preliminary

injunction is an extraordinary remedy, the Court stated:

Any injunctive relief in these circumstances would be mandatoryin nature, a harsh remedial process, used only in cases of greatnecessity and not looked upon with favor by the courts.

Id. at 662 (emphasis added). Indeed, one of the primary reasons for judicial reluctance to issue

preliminary injunctions is that they require the court to act on an incomplete record, where "the

danger of mistake is substantial." Hughes Network Systems, Inc. v. Interdigital Communications

Corp., 17 F.3d 691, 693 (4th Cir. 1994). Because of these fears, courts require the moving party

to clearly establish entitlement to the relief sought. Id. Thus, courts generally favor maintaining

the status quo. "Status quo" is defined as "the existing state of affairs at the time in question."

See City of Klamath Fall, Or. v. Babbit, 947 F. Supp. 1, 8 (D.D.C. 1996) (citing WEBSTER'S

THIRD NEW INTERNATIONAL DICTIONARY 2230 (1993)).

The Board has previously and consistently ruled that the standard for evaluating

stay requests is the heightened standard used for evaluating requests for preliminary injunctions.

See, e.g., PPG Industries v. WVDEP, 05-18-EQB (August 28, 2006) (applying the 4-part

Blackwelder test adopted by the State Supreme Court in Jefferson County Bd. of Ed. v. Jefferson

County Ed. Ass'n, 393 S.E.2d 653 (W. Va. 1990)). The core of this analysis is the "comparative

hardship" of the parties and an emphasis on whether a stay is needed to prevent irreparable

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harm. See Morrisey v. West Virginia AFL-CIO, 804 S.E. 2d 883, 888 (W.Va. 2017). Thus, to

determine whether a preliminary injunction should issue. West Virginia courts and

administrative boards conduct their analyses according to the Blackwelder four-part test:

(1) the likelihood of irreparable harm to the plaintiff if theinjunctive relief is denied;(2) the likelihood of harm to the defendant if the requested relief isgranted;(3) the likelihood the plaintiff will succeed on the merits; and(4) the public interest.

The Appellants, however, have virtually ignored this standard, have failed to adduce ANY

evidence of irreparable harm to themselves, and have failed to evaluate the harm to Mountaineer

or the public. For these reasons alone the Board must deny the request.

III. ARGUMENT

Appellants' motion is deficient on its face for failing to allege entitlement to

injunctive relief under West Virginia's four part comparative hardship standard.

A. Appellants have not alleged irreparable harm.

Appellants' motion claims they will suffer undue hardship absent a stay. But as

previously held by this Board, unjust hardship is defined in the context of the four-part

Blackwelder test. Accordingly, the Appellants must first allege and prove that, absent a stay,

they will incur "irreparable" harm. Additionally, the harm must be one from which they are

protected under the West Virginia Water Pollution Control Act ("WVWPCA")—^the Act on

which their appeal relies. Then, that harm must be balanced against the harm to Mountaineer

and the public. Yet Appellants have not even alleged—much less proven—any irreparable harm

as a result of Mountaineer's ongoing use of its General Permit registration.

The closest Appellants come to demonstrating any harm to their interests is a

couple of photos where small sections of silt fences have fallen. See Motion for Stay, H 13. But

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Mountaineer's sediment controls are inspected regularly by its own workers and by WVDEP. If

defects are discovered in its sediment control measures. Mountaineer repairs them as soon as

possible. See Exhibit 1, T1 3 (Affidavit of Reed Robinson). There is NO effort to prove that these

minor defects in silt fences have already resulted in ANY harm to the water or the aquatic

environment or that there is likely to be any "irreparable" harm in the absence of a stay. This

alone is fatal to Appellants' request. See Jefferson County Bd. of Ed, 393 S.E.2d at 662 ("We

have uniformly held that in order to obtain a preliminary injunction, a partv must demonstrate the

presence of irreparable harm.") (Emphasis added).

Finally, Appellants waited over three months to request a stay. The delay in

seeking relief from this Board speaks volumes about the lack of immediate, irreparable harm.

See LeSportsac, Inc. v. Dockside Research, Inc., 478 F. Supp. 602, 609 (S.D. N.Y. 1979)

("Although plaintiff contends that it will be irreparably harmed should defendant's activities not

be enjoined, it has waited nearly a year before seeking any relief. Delay of this nature undercuts

the sense of urgency that ordinarily accompanies a motion for preliminary relief and suggests

that there is, in fact, no irreparable injury); see also County Court of Mercer County v. Princeton

Power Co., 169 S.E. 450, 451 (W.Va. 1933) ("a mandatory injunction should not issue where

there has been a long delay by the party seeking the injunction.").

B. Mountaineer will unquestionably suffer irreparable harm if a stay is granted.

A stay of Mountaineer's General Permit registration would prevent it from

continuing ongoing construction activities for the Project. Should the stay be granted, even

temporarily. Mountaineer will incur substantial unrecoverable costs, which by definition

constitutes "irreparable" harms. See Sampson v. Murray, 415 U.S. 61, 90 (1974) (explaining that

4811-9404-6827. vl

the possibility of adequate compensatory or other corrective relief at a later date is a factor to

consider in deciding whether a party can demonstrate irreparable harm).

A stay of operations would face Mountaineer with two equally damaging

scenarios. Under the first, Mountaineer could continue to pay work crews during the duration of

a stay so that the Project could be completed as quickly as possible after the stay's conclusion.

In that scenario, however. Mountaineer would incur incremental capital expenditures for each

month the stay is in place with no guarantee that it could ever recoup these additional costs

should it ultimately prevail in this case. See Exhibit 1, Tjh (Affidavit of Reed Robinson).

Specifically, Mountaineer would incur: (a) additional expense to extend leases in laydown yards;

(b) increased construction management time due to the overall delay in the completion of

construction; and (c) increased cost to maintain and replace erosion control devices. Id.

Under a second scenario. Mountaineer could demobilize work crews to avoid

expenses associated with "shut down days" described above, but it would lose its experienced

workforce. Specifically, currently contracted workers would seek work elsewhere in the country

rather than wait, unpaid, for the Mountaineer project to resume, resulting in new hiring at the end

of the delay that could require Mountaineer to pay higher than the market rates currently in

place. Intangible harm to Mountaineer could also result, such as harm to its reputation with its

construction contractors and a diminution in contractors' willingness to work with Mountaineer

in the future. Id. at 7.

Mountaineer will unquestionably suffer irreparable harm if a stay is granted.

Where, as here, the comparative harm that Mountaineer will sustain substantially outweighs any

harm the Appellants may sustain if the injunctive relief is granted, the relief should be denied.

See State ex rel E.I. DuPont De Nemours and Co. v. Hill, 214 W. Va. 760, 771, 591 S.E.2d 318,

4811-9404-6827. vl

329 (2003) (recognizing that the court must exercise its sound discretion with due regard to the

comparative hardship or eonvenience of the respeetive parties in determining whether to grant a

preliminary injunction). Thus, the seeond factor weighs decidedly against a stay.

C. Any Stay Would Harm the Public Interest.

As a matter of law, the expeditious completion of Mountaineer's distribution

project is in the publie interest. Consequently, any delay in its implementation is contrary to the

publie interest. In its 2015 regular session, the West Virginia Legislature enacted Senate Bill

390 (SB 390), codified at W.Va. Code § 24-2-lk, which authorizes the Public Service

Commission ("PSC") to approve expedited eost reeovery of projects to replace, upgrade and

expand natural gas utility infrastructure that is deemed just, reasonable, and in the publie interest.

See W.Va. Code § 24-2-lk(e). The Legislature found that aeeelerated investment in certain gas

infrastructure projects and more timely rate recovery for that investment will create jobs,

improve the safety and reliability of natural gas infrastructure, provide for more economical

natural gas service, and facilitate the extension of natural gas service to new eustomers in

unserved or underserved areas. By Order dated November 17, 2016, the PSC approved the

Projeet, finding it "just, fair and reasonable and in the publie interest." See Exhibit 2, p. 11,

Conelusion of Law No. 3 (11/17/16 PSC Order Case No. 16-0922-G-390P) (emphasis added).

Mountaineer presently employs over 60 workers on the Project. See Exhibit 1, ̂

8. (Affidavit of Reed Robinson). Under the best-ease seenario for presently employed workers,

they would remain mobilized, but idle. The workers would continue to be paid, although they

would not earn available overtime pay that is typical for a major construction project. Should

Mountaineer deeide to demobilize its labor force in order to save money, workers would lose

4811-9404-6827. vl

good-paying jobs during peak summer construction months. Either scenario will reduce payroll

or income tax proceeds for the State.

Furthermore, during the time the Project is idled, Berkley, Jefferson, and Morgan

Counties would lose direct economic stimulus. Id. at TI 9. Thus, delays in the Project not only

adversely impact Mountaineer's finances; local government budgets will also suffer.

D. Appellants Have Not Demonstrated a Likelihood of Sueeess on the Merits.

Given Appellants' failure to allege irreparable harm or to compare harm to their

interests with the harm to Mountaineer and the general public, analysis of their likelihood of

success on the merits is unnecessary. That being said. Appellants have failed to demonstrate a

likelihood of success on the merits of the claims in their Amended Notice of Appeal.

Mountaineer and WVDEP have previously explained why the claims in

Paragraphs 6.a., 6.b., 6.c., 6.f, 7 and 11 of the Amended Notice of Appeal should be dismissed

for failure to state a claim upon which relief may be granted. By a separate motion for summary

judgment, the Appellees will explain why they are entitled to judgement as a matter of law on

Paragraph 8 of the Amended Notice of Appeal. In support of their Motion for Stay, Appellants

identify alleged deficiencies in Mountaineer's General Permit registration that have not been

previously addressed by Mountaineer and WVDEP in their briefs, which Appellees address

briefly below.

First, although Appellants claim the Permit does not contain adequate BMPs, they

do not explain why the BMPs are "inadequate" other than to cite their expert's opinion. See

Motion for Stay, Tj 7. The BMPs imposed by Mountaineer's General Permit registration are

consistent with the industry standard and WVDEP's Erosion and Sediment Control Best

4811-9404-6827. vl

Management Practice Manual ("BMP Manual").' In fact, WVDEP required Mountaineer to go

above and beyond the standard BMPs and implement certain enhanced BMPs because the

Project will traverse TMDL watersheds. Appellants fail to identify any reason why the standard

BMPs WVDEP applies to users of the General Permit are deficient, much less the enhanced

BMPs required of Mountaineer.

Next, Appellants allege that no engineering calculations were performed to

determine drainage areas for proposed BMPs or to determine peak discharge rates. But

WVDEP's BMP Manual identifies BMP use parameters, which negates the need for precise

calculations of peak discharge rates.

Next, Appellants' expert opines that there were inadequacies in identifying

sinkhole drainage areas as required by West Virginia's 2005 Sinkhole Mitigation Guidance. See

Motion for Stay, 10 citing Dodds Report, p. 12. But neither Appellants' motion nor Dr.

Dodds's expert report explain how WVDEP's Sinkhole Mitigation Guidance is applicable to

Mountaineer's General Permit registration. The Sinkhole Mitigation Guidance's stated purpose

is as follows:

These sinkhole mitigation designs serve to allow the filling of sinkholes whilemaintaining recharge to the aquifer, reducing potential contamination threats togroundwater, and eliminating safety hazards at sinkhole entries.

Sinkhole Mitigation Guidance, p. 1.

Mountaineer's Karst Mitigation and Avoidance Plan identifies karst features

along the proposed pipeline route, including sinkholes. The Plan states that "permanent filling,

excavating, or otherwise altering existing karst features, or any of these activities within 100 feet

' Copy available at: httDs://dep.wv.gov/WWE/[^rograms/stoiTnwater/csw/Pages/ESC BMP.aspx.

^ https://dep.wv.gOv/WWE/Prograins/gw/Pocuments/9026 Sinkhole Mitigation Guidance Document A2005.pdf.

84811-9404-6827. vl

of a feature, will be avoided, if possible, or at the very least minimized." See Certified Record,

p. 1760. Mountaineer was not required to identify sinkhole drainage areas because it does not

plan on filling or altering sinkholes or even coming within 100 feet of a sinkhole unless

absolutely necessary. Thus, the Sinkhole Mitigation Guidance is inapplicable to Mountaineer's

General Permit registration.

Appellants' final two claims—regarding the potential for landslides and alleged

failure to conduct water sampling for all homes within 250 feet of the pipeline route—cannot

serve as the basis for a stay because they are not part of this appeal. Appellants' Amended

Notice of Appeal does not mention the potential for landslides or a failure to identify and sample

all residential wells required hy the Stormwater Pollution and Prevention Plan. "An objection

not raised by the appeal shall be deemed waived...." W.Va. Code St. R. 46-4-2.2.c.

IV. CONCLUSION

Appellants' motion does not make the required showing under any prong of the

four-part balancing test used for analyzing requests for injunctive relief. Accordingly,

Mountaineer and WVDEP respectfully request that the Board deny Appellants' Motion for Stay.

Respectfully submitted,

MOUNTAINEER GAS COMPANY WEST VIRGINIA DEPARTMENT

OF ENVIRONMENTAL PROTECTION

By Counsel

By Counsel

' Vf/'/AA M\]fAAAk P.. .A A.ROBERT G. McLUSKY, WVBN 2489 JASON WANDLING dCHRISTOPHER M. HUNTER, WVBN 9768 OFFICE OF LEGAL SERVICESJACKSON KELLY, PLLC 601 57th Street SE1600 Laidley Tower Charleston, WV 25304Post Office Box 553 Counselfor West Virginia Department ofCharleston, West Virginia 25322 Environmental ProtectionCounselfor Mountaineer Gas Company

4811-9404-6827. vl

WEST VIRGINIA ENVIRONMENTAL QUALITY BOARDCHARLESTON, WEST VIRGINIA

SUSAN TAYLOR DROPP and

LAURA STEEPLETON,

Appellants,

V. Appeal No. 18-01-EQB

DIRECTOR, DIVISION OF WATER ANDWASTE MANAGEMENT, DEPARTMENT

OF ENVIRONMENTAL PROTECTION,

Appellee,

and

MOUNTAINEER GAS COMPANY,

Proposed Intervenor/Appellee.

CERTIFICATE OF SERVICE

I, Robert G. McLusky, hereby eertify that a true and exact copy of the foregoing

JOINT RESPONSE IN OPPOSITION TO MOTION FOR STAY was caused to be served upon

the following via United States mail, postage pre-paid, this 21st day of June, 2018.

Rose Monahan

Fair Shake Environmental Legal Services3495 Butler Street, Suite 102

Pittsburgh, Pennsylvania 15201

Susanne E. Thompson

P.O. Box 2000

Martinsburg, West Virginia 25402

Jason WandlingOffice of Legal Services601 57th Street SE

Charleston, WV 25304

CHRISTOPHER M. HUNTER

4811-9404-6827.V1