Opponents of the Addison County natural gas pipeline want most of an independent safety investigation thrown out, alleging improper communication between Vermont Gas attorneys and the investigator.
Attorney Jim Dumont claimed in a filing with the Public Utility Commission that investigator William Byrd “secretly engaged in ongoing, substantive and voluminous” exchanges with Vermont Gas lawyers about how Byrd should conduct the investigation and what he should conclude.
Dumont filed the motion on behalf of five Monkton and Hinesburg residents who originally requested an investigation in 2017.
The company and attorneys denied any wrongdoing.
Three months after the pipeline from Colchester to Middlebury was completed in April 2017, the PUC began looking into claims that the pipeline was not buried deep enough in 18 places along a 2,500-foot stretch in a New Haven swamp. The commission expanded the investigation in 2018 at the prompting of the intervenors and two state agencies.
The PUC contracted RCP Inc. — a Houston-based engineering firm headed by Byrd — to conduct the investigation. In a report submitted at the end of last year, the investigator confirmed that construction plans for the Addison County natural gas pipeline were not stamped by a professional engineer and that parts of the pipeline under a swamp were not buried as far as required.
But the report also concluded that Vermont Gas “was diligent in their efforts” to comply with state regulators and federal safety regulations, often exceeding those standards.
Sen. Anthony Pollina, P/D-Washington, said in a comment filed with the PUC on Tuesday that he was “deeply concerned” by the allegations in Dumont’s filing.
“As a State Senator I believe if this process is to have any credibility it must be free of any sort of corruption, real or perceived,” he wrote. “And I look forward to the response to this motion.”
Dumont claims Vermont Gas’ attorneys regularly corresponded one-on-one with Byrd. In one instance, Byrd asked Vermont Gas to measure the depth of cover at a stream crossing in Monkton — something he was required to do in his PUC contract, according to Dumont’s motion.
Rachel Smolker, a Hinesburg biologist and project opponent, said intervenors believe Byrd’s final report, submitted at the end of last year, was based on documents not provided to the PUC or intervenors. Because of that, Dumont asked for copies of communications between Byrd and Vermont Gas and their attorneys.
“After the huge effort that I and many others expended to obtain Commission review of the…(pipeline), I find it difficult to express how disrespectful and demeaning the conduct of Sheehey Furlong & Behm and Mr. Byrd has been,” Smolker wrote.
Throughout the investigation, the intervenors have maintained that Vermont Gas did not construct the pipeline according to the plans it submitted to the PUC, as required in its commission-issued approval.
In the conclusion of his report, Byrd notes that many of the issues raised about the pipeline had to do with whether or not its construction exactly followed a specific plan.
“Because there is no such thing as a perfect set of written plans and specifications, nor perfect compliance with those specifications and standards, my standard was not perfection,” he wrote.
Smolker claims in her affidavit that Byrd “glossed over” many of the concerns raised by the intervenors because he concluded that the commission intended to allow Vermont Gas to alter construction plans as needed.
The intervenors claim that Byrd derived that conclusion through communication with Vermont Gas’ attorney, Debra Bouffard. They cite an email exchange that occurred early last November about construction plan adjustments, shortly before Byrd submitted his final report to the PUC.
The Department of Public Service has separately issued a notice of probable violation in 2016 over worker safety requirements for the portion of the pipeline built in an electrical transmission corridor, for which the utility paid $95,000. And the department issued another notice of probable violation regarding pipeline burial and trench breaker installation in 2018 that is still open pending the results of this investigation.
Vermont Gas maintains communications with Byrd were proper. Utility spokesperson Beth Parent said Byrd “made it clear from the beginning” he would directly reach out to Vermont Gas for relevant documents without including all parties.
“Every party was included in that notice, including Attorney Dumont, and no one objected until Friday,” Parent said.
“We fully cooperated with and responded to the investigator using the highest standards of professionalism and propriety,” she said.
“This investigator was independent, and he confirmed the safety of our pipeline, the quality of construction, and found that we met the letter of all requirements and commitments in almost every case and the intention In every case,” she added.
Owen McClain, an attorney representing Vermont Gas, said Dumont was “expressly informed in advance” by the investigator that Byrd would contact Vermont Gas directly to set up site visits and to access documents.
McClain said Dumont had been provided with copies of all direct communications during discovery but waited until after Byrd’s report to make his claims.
“We believe Attorney Dumont’s motion is motivated more by the outcome of the investigation than the professional conduct of our office on behalf of VGS,” he said.
Byrd did not respond to an email or phone message seeking comment Tuesday.
Michael Tousley, the PUC hearing officer for the investigation, declined comment, saying the investigation was ongoing. He said the PUC expected responses within two weeks from Vermont Gas and the Department of Public Service (PSD) about the intervenors’ allegations.
Jim Porter, director of public advocacy for PSD, also declined comment but said the department would file a response.
Read the story on VTDigger here: Pipeline opponents accuse Vermont Gas attorneys, investigator of improper communications.
