They were not the sort of reactions a governor might hope for after naming his pick to lead a state agency.
“Disappointing,” said the Virginia chapter of the Sierra Club after Gov. Ralph Northam’s decision last month to reappoint David Paylor as director of the Virginia Department of Environmental Quality. The group added that Paylor, who has now served under each of the last four governors, had “spent a decade cozying up to corporate polluters.”
The Chesapeake Climate Action Network said Northam, a Democrat who received big campaign donations from conservation groups, “seriously dropped the ball” and urged him to reconsider.
The backlash wasn’t altogether unexpected. Paylor has emerged as the lightning rod for critics of the agency he leads, seen as too accommodating of industry and too timid in setting permit limits and pursuing enforcement actions against polluters.
Paylor has been heckled at State Water Control Board meetings, and by protesters in golf carts outside DEQ headquarters as a result of his decision to accept a 2013 trip to the Masters golf tournament courtesy of Virginia’s biggest utility, Dominion Energy.
And his agency has faced withering critiques for its handling of environmental reviews for the Mountain Valley Pipeline and Dominion’s Atlantic Coast Pipeline, as well as its handling of closure plans for pits containing millions of tons of coal ash.
“Despite my personal affinity for David, the perception is that if police treated drivers the same way DEQ treats polluters, they’d write ‘pretty please’ on speed-limit signs and hand people doughnuts when they got pulled over,” said Albert Pollard, a former state delegate who now works as a consultant to environmental groups.
“Any DEQ director is hampered by the fact that Virginia statutorily wants to be a permitting state. If you fill out the permit, you get it.”
‘I hate golf’
Paylor has also gained a reputation as a career survivor adept at navigating the political currents of the business-friendly General Assembly, a leader who has kept the DEQ running through major budget and staff cuts, and a sincere steward of the environment who has protected Virginia’s natural resources within the limits of the law.
“David is a man of tremendous integrity,” said W. Tayloe Murphy Jr., who was Paylor’s boss from 2002 to 2006 when Murphy was Gov. Mark Warner’s secretary of natural resources.
Paylor, who started working for the state environmental agency as an aquatic biologist in 1973, was a deputy secretary under Murphy before being appointed DEQ director by Gov. Tim Kaine, a job he has held since.
“There is nobody in the state that has a stronger background and greater commitment to environmental protection than David Paylor,” said Murphy, a former state delegate from the Northern Neck who guided landmark legislation to protect the Chesapeake Bay.
In a brief interview last month, Paylor said some of DEQ’s critics might be looking for more from the agency than it can deliver within the bounds of the law. Levels of phosphorus and nitrogen going into the Chesapeake Bay — nutrients that feed oxygen-killing algal blooms — have been dramatically lowered.
Waterways across the state are coming back to life. Air pollution is down. Those results, he says, come as the agency has lost $46 million in state funding since 2001 and about 30 percent of its staff.
“If you look at the environmental record that this agency has over the last 25 years, it’s nothing but positive environmental improvements,” Paylor said. “We are guided by the science and the law. Not everybody always agrees about the law. But we’re advised by our counsel about what the law requires and we aim to fairly and diligently apply the authorities that are given to us.”
As far as the Masters trip, he says he wouldn’t do it again.
“It creates a narrative that something nefarious is going on that is not,” he said. Paylor said he initially turned down the offer to attend but ultimately went because “there were several legislators on the trip that I needed a better relationship with.”
“It was fully disclosed in accordance with the law and has absolutely no impact on any decision we make relative to Dominion,” Paylor said. “For one thing, I hate golf. I might hate it more now.”
‘We have high expectations’
Not every environmental group has publicly bashed Northam’s decision to keep Paylor. The Virginia chapter of the Nature Conservancy, for example, highlighted Paylor’s “willingness to listen and engage in constructive dialogue.”
But the Virginia League of Conservation Voters — which gave Northam about $2.8 million in campaign contributions and made no secret about hoping to shape decisions by his administration — remained silent.
Paylor’s reappointment came on the same day that the DEQ marked its 25th anniversary. Two days later, Northam rolled out an executive order requiring a “comprehensive review of DEQ’s permitting, monitoring and enforcement activities across all program areas.”
Environmental groups were told in advance about the pair of announcements: On the one hand, Paylor would stay, but on the other, the agency would get a top-to-bottom review.
“We feel that there’s an opportunity and a need for DEQ to be more bold on pressing issues like coal ash and the pipelines that are going to have major impacts on our environment,” said Mike Town, executive director of the Virginia League of Conservation Voters, in an interview.
“Regardless of who is DEQ director, we’re going to evaluate the agency based on results. And we have high expectations.”
Not a ‘culture of strong enforcement’
Many see in Paylor’s DEQ a reluctance to push polluters seeking permits to the limits of the law or come down hard on violators.
“David is a genius for keeping the DEQ afloat through the cuts and legislative bullying,” said Pollard, the former state delegate. “But that same skill set of surviving conflict means there’s not a DEQ culture of strong enforcement, even when it’s warranted by the facts.”
After Dominion rolled out its plans for treating and draining the ponds at four coal ash sites across Virginia into waterways, including the James River, the James River Association got Dominion to agree to more stringent treatment of the ash pond water, something the DEQ was unwilling to require in its discharge permits, critics contend. The water can contain a number of heavy metals.
“I’m not going to discuss what goes into our permit negotiations,” Paylor said. “We frequently ask permitees to do things that are outside the rules because we think they make sense. And should they volunteer to do that, those become permit requirements.”
He added that the permits issued for draining the coal ash ponds held up in court when challenged by environmental groups.
“We issue permits that we are not going to lose in court, regardless of who sues us,” he said.
Following a lengthy federal lawsuit, the Sierra Club and its attorneys convinced a federal judge that arsenic seeping out of the ash ponds at Dominion’s shuttered Chesapeake power plant was a violation of the Clean Water Act, a case that remains under appeal.
DEQ has not acted on seeps at the Chesapeake site or at other coal ash pits that show evidence of leaking, to the frustration of environmental groups.
In another example, the water board last year rejected a proposed fine of $26,160 for years of water discharge violations and other compliance problems at an Eastern Shore Tyson chicken-processing plant, with one board member calling it “paltry.”
And among the most controversial issues, which is still playing out before the water board, is how the DEQ has managed crucial water-quality certifications for the Atlantic Coast and Mountain Valley pipelines, which will cross hundreds of Virginia waterways.
Some water board members are pushing back at the agency’s determination that a U.S. Army Corps of Engineers permit is good enough to protect Virginia waters from pipeline blasting, trenching and other construction risks.
‘They fought us hard’
Paylor has insisted that the unfettered enthusiasm for the pipelines of his former boss, Gov. Terry McAuliffe, has not skewed his agency’s review.
“I tell the truth, I stick to the law and I stick to the science,” Paylor said. “And I have not yet worked for a governor who has appointed me who has asked for anything other than that.”
But in her book, “Climate of Capitulation,” Vivian Thomson, a retired University of Virginia professor of environmental policy and politics and former member of the state Air Pollution Control Board, used Kaine administration emails now publicly available to illustrate the intersection of environmental policy and political influence during Paylor’s early years as DEQ director.
Thomson documents struggles with Paylor, Kaine’s administration and state lawmakers who worked to undercut the board as it successfully imposed strict air permit limits on Dominion’s Virginia City Hybrid Energy Center in Wise County, among other issues the board tackled.
“They fought us hard on the limits we wanted to set,” Thomson said in an interview. Those limits, Dominion now boasts in statements about the St. Paul power plant, are “some of the most stringent air quality requirements in the nation for a coal-fired power station.”
In 2008, the air board voted to take over the permit for Dominion’s Wise County facility after a majority decided the DEQ’s proposed limits, which were largely the same as Dominion’s, did not meet the requirements of the federal Clean Air Act.
After that and other attempts by board members to exert their authority, Preston Bryant, then secretary of natural resources, declared the air board “out of control,” in an email and called for “intervention,” Thomson wrote.
Bryant and Paylor at one point suggested meeting with two board members directly “to discuss their views of an acceptable permit.” They also suggested that a single member of the board could “negotiate directly” with Dominion, provided that he agree not to vote on the final permit, or use the DEQ as an “intermediary.”
The board member, Bruce Buckheit, refused, saying “use of an intermediary suggests that the contact is inappropriate and raises important considerations [regarding] ‘circumvention.’”
Alternatively, they suggested, the General Assembly could “direct that this decision be under the jurisdiction of the department” or that the governor could issue a directive to the board.
Prior to a crucial vote on the coal plant permit, DEQ tried to postpone the meeting because a board member, John Hanson, had a business commitment out of state.
Fearing a defeat of the permit, behind the scenes, Bryant, Paylor and Kaine’s staff “were trying to appease Dominion’s top management by ensuring John could participate,” Thomson wrote.
Bryant wrote that Bob Blue, a Dominion executive, asked “that every mountain be moved to have Hanson participate by phone from Ohio.”
Bryant conceded that would be “difficult from a FOIA perspective.” Board members had been told they could only participate electronically if they were in Virginia and somewhere accessible to the public. “Dave Paylor is likely to reject Bob Blue’s plea,” Bryant wrote.
At one point, Paylor wrote Mark Rubin, an official in Kaine’s administration, and Bryant, to notify them that “John can now not make any part of the air board meeting.”
“Bob Blue will be calling you (perhaps as I write this) to ask you to put pressure on him to be available,” Paylor wrote.
Ultimately, Hanson was permitted to participate in the meeting electronically.
Paylor declined to discuss Thomson’s book in detail.
Of the Wise power plant, he said state law “required us in that case to issue a permit that allowed them to use a certain percentage of Virginia coal that was high sulfur.”
The board’s decision “jeopardized the ability to use that coal” and went beyond applicable regulations, he added.
“Dominion chose not to sue us,” Paylor said.