MONTEREY - Big machines have been rolling up to Allegheny Mountain for days. Site development work on Virginia's first industrial wind energy plant is expected to start this week.

Passersby report heavy equipment has been parked near the entrance to Red Oak Knob, and blasting heard over the last couple of days. A skidder moved in after dark a few days ago, and trees are being cut near one of the turbine sites; one truck full of logs has already headed out with its load.

There were a few loose ends to tie after county officials approved Highland New Wind Development's plans, and most of those have been checked off the list.

HNWD owner Henry T. "Mac" McBride recorded a deed in Pocahontas, W.Va., buying 11.2 acres for $11,200, and an easement was recorded in Highland to satisfy the 1,600-foot setback requirement from other property lines.

He also recorded a certificate to ensure HNWD's conditional use permit resolution is officially tied to the land title for property he is leasing to his company.

By Monday, HNWD had not yet recorded the E&S bond required for construction, or the performance bond related to decommissioning. Building official Jim Whitelaw said county attorney Melissa Dowd was still working on the language, terms and amounts for both.

HNWD needs to post the E&S bond to get a land-disturbing permit from Whitelaw before he can begin to move dirt.

Soon, the company will also apply for building permits - one for each turbine - after a performance bond is posted, Whitelaw said.

Beyond that, county officials are satisfied HNWD has met the conditions attached to its local permit. The only other obstacle might be Pocahontas County's objections; commissioners there wrote to McBride and Highland supervisors, hoping to discuss their concerns about the proposed utility before construction begins (see related story, front page).

The developer also has conditions to meet under its state permit, which was issued by the State Corporation Commission in December 2007, and the SCC's order is so far unchallenged.

One of those conditions was to send a final site plan to the state agencies reviewing the project.

The Department of Environmental Quality agreed to distribute the plans for HNWD, and did so twice by sending each a web site from which state officials could download maps, erosion and sediment control plans, and narratives prepared by HNWD consultant Blackwell Engineering.

One of the agencies is the Department of Game and Inland Fisheries. DGIF will also play a role in helping to mitigate and monitor impacts to wildlife and the Laurel Fork watershed once the project is under construction and during its operation.

DGIF has not yet gotten a site plan it can review, however. David Whitehurst, director of DGIF's Bureau of Wildlife Resources, said the agency got a hard copy of the site plan in late July, a plan that has since been revised twice more.

Whitehurst said it "was not at a scale we could interpret."

The maps have a scale of one inch equaling 500 feet, and 40-foot contour intervals. "The plan had a lot of information on it," Whitehurst said, "but the scale made it too difficult to interpret ... From what I'm told, that's still the scale on the final plans," he said. "We need to have more detail than that to give it a thorough review."

He said his agency contacted DEQ asking for more detailed information, but DEQ informed DGIF it was no longer coordinating project matters.

DEQ agreed to distribute the final site plans for the developer, but its role as a coordinating agency ended after the SCC issued its permit in 2007.

"We're still trying to figure out what's going on," Whitehurst said, "but we just learned about all this in the last few days, and I think now, if we need more information, we must contact the developer."

DGIF had also hoped to review the Erosion and Sediment control plan. While it doesn't always review E&S plans, or have authority over them, he said DGIF is sometimes consulted on erosion and sediment control. Authority for E&S, he said, is in the hands of the Department of Conservation and Recreation. "DCR has the state responsibility for soil and water, and they have conveyed that authority to localities who want it. In Highland County, they've done that ... While we've tried to review and comment on the E&S plan, we haven't been able to get those details," he said.

Whitehurst says he's not sure what DGIF will do next. "We're still trying to determine that. The plan may be fine, but we don't know at this point."

DGIF is responsible for protecting wildlife, and especially Laurel Fork, the high-quality stream running through the project, "but DCR has the legal authority for soil and water, not us ... Once they get into construction, DCR can get into some inspections and maybe they can affect some changes."

However, DCR's Jim Echols said his agency only guides the county.

Under Virginia's regulations, any locality that wants to be its own authority on erosion and sediment control can do so, as long as it can show competence and consistency in that area. DCR staff can help counties become their own "planning authority," which Highland County has done.

Though it failed to pass DCR's tests for being consistent previously, Highland has since improved its process to be in compliance.

Highland supervisor Robin Sullenberger has stated repeatedly he's confident building official Whitelaw did his job in reviewing HNWD's site plan and E&S plan, and he is especially confident in the plan because the DCR reviewed it. "Everyone I've talked to about this at the state level has said DCR is the authority," he has said.

Supervisor David Blanchard, however, had asked county officials to have the E&S plan reviewed by state agencies before it was approved. "To my knowledge, the DEQ and DGIF have not been notified, consulted or asked for input on the content of the proposed E&S plan," he had written to Whitelaw. "This lack of notification deprives you ... from critical expert advice to develop an E&S plan that protects the interest of Highland County and HNWD. I believe failure to contact these agencies does not satisfy a requirement necessary to approve the current E&S plan."

Whitelaw chose not to ask those agencies to review the plan before he approved it.

"Mr. Whitelaw did his job as required, and we hired and had extensive input (from Mattern and Craig). They were satisfied it was adequate," Sullenberger said then. He also said a review of the E&S plan by the DCR was a key factor. Officials he contacted, Sullenberger said, agreed DCR was the agency to consult. "That process was addressed; DCR is the agency of choice," he said.
But this week Echols reiterated that DCR only did a cursory review, not a thorough review. Mark Chambers, who conducted the review, had the same problem with the scale as DGIF. In his letter to Echols, forwarded to Whitelaw before the county approved the plan, Chambers said, "The E&S plan does not provide a level of detail to meet the requirements of the Virginia Erosion and Sediment Control regulations. Specifically, the plan scale of 1=500 and the 40-(foot) contour interval does not describe the existing site conditions in enough detail to determine the scope of the work that will be required to complete the project. The lack of information and detail makes it impossible to provide comprehensive or detailed comments about the plan. It is impossible to determine the amount and nature of land disturbance it will take ... or the types, sizes, and Location of erosion and sediment control measures that will be required ... a larger scale drawing with smaller contour interval is required."

Echols stressed again this week, "We cannot approve a plan, disapprove of a plan, or make recommendations for a plan. That is beyond my legal authority. All we can do is offer technical assistance to localities."

To date, he said, DCR has not seen the final E&S or site plan and cannot comment on those. Highland County is the planning authority, and any comments or approvals on the plan must come from Highland, he said.

Downstream landowners Lucile Miller and McChesney Goodall had asked the county twice for enough time to review the E&S plan before it was approved so they could determine whether it protected their property and the Laurel Fork watershed; both have spent years protecting the tracts of land they own and are particularly concerned about heavy construction adding sediment to the stream.

They had asked DCR not to approve a Storm Water Pollution Permit until a thorough review of erosion control measures took place.

But DCR did approve that permit within days of receiving the plans from HNWD. What recourse do downstream landowners have if they believe the E&S plan isn't up to state standards?

"You tell me," Echols said. "Where were these people when Highland County was running an E&S program that wasn't compliant? Citizens should have been stepping up then ... I've never seen a plan that was perfect," he added. "I'm far more concerned that the proper controls are installed."

The county's hired engineering firm, Mattern & Craig, reviewed the plan, and declared it met minimum standards when HNWD's engineers made revisions it suggested. Mattern & Craig recommended Whitelaw approve it, and Whitelaw did that within a couple of hours of getting the firm's go ahead.

Echols said because he has not seen the final E&S plan, he cannot comment on whether it meets state requirements. But, he said, "A lot of the PEs (professional engineers) submit horrible plans. Just because someone's a PE doesn't mean they do it right."

HNWD attorney John Flora had told county officials he had been talking a lot with DGIF and other agencies, though Whitehurst said the only conversation he was aware of was when DGIF director Bob Duncan got a tour of the site at the end of July. He said he's not aware of any other preconstruction meetings discussed, and DGIF has not yet determined its next step.

"We haven't worked that out yet, but there hasn't been much time; I don't know how we'll approach it," Whitehurst said. "We have plenty of other things to do. We do want to be involved but we need to be involved when it's appropriate. We want to go forward. We want to see that it's done right. We want to hold up our end of the bargain, our responsibilities, but we're plowing new ground here, all of us."

Asked whether DCR had a plan for regular inspections, Echols said it's up to the county to make inspections, and take action if it finds an E&S plan is not meeting standards. "The planning authorities can enforce the regulations," he said.

As for the SCC condition that says HNWD is to work with state agencies, including DCR, to protect waters and the environment, Echols said, "I've never seen that. have no idea what the SCC says. As far as we understand it, the DEQ is the one doing that." DCR can, however, accompany local governments for a joint inspection of a project, and offer assistance. "We want local governments to be as good as they can be," he said.

DCR staff members have no plans at this time to meet with HNWD prior to construction. "I have little doubt we'll inspect at some point," he said, "but I don't know when. It depends on the situation and when we can get there. We don't have a lot of staff."

Another agency still to respond

HNWD's state permit requires the company to work with the Department of Historic Resources on viewshed analyses and archaeological studies, neither of which have been provided to DHR's satisfaction. The last correspondence was from HNWD, telling DHR it believed it had done everything it needed to do and would not be consulting further with the agency until after construction started.

DHR's Roger Kirchen said Tuesday his agency has not decided how to respond, but still felt its concerns remain valid. "Our response is still pending," he said. We need time among our staff to talk about it."

Over the course of years on the matter, a lot of DHR staff have become involved and they now discuss the project by committee, Kirchen said. Due to summer vacations and other conflicts, they have not had time to get everyone together. "I expect our response will be copied to the
SCC, if not directly addressed to the SCC," he said. "In our minds, these issues are still not addressed."

DHR also received a copy of HNWD's final site plan, and Kirchen said it did not raise any new issues. "Our biggest concern is still to help them guide an archaeological study," he said, and a site plan gives the agency a better understanding of where the towers are located so it can do that. He stressed the West Virginia State Historic Preservation Office has been kept informed by DHR, and has written at least two letters to the SCC about its concerns as well.

The Army Corps of Engineers, however, has settled the question raised by Highland citizens about whether HNWD needs a federal permit to impact wetlands.

After Vincent Pero of the Corps was contacted by citizens who asserted there were more wetlands at the project site than had been delineated, he took a personal tour with HNWD's consultant and determined there were, indeed, other areas that needed to be mapped.

Since his visit, HNWD has twice revised its site plan to show where the wetlands are located at the project area, though not on the entire 4,000-acre McBride property. Wednesday, he said the first draft submitted was not correct, but it was revised and he has the new map. He was finishing a letter to the company saying the wetlands boundaries had been verified, and as long as directional drilling is used to run transmission lines under those areas, no Army Corps permit would be required. If the project changes, however, HNWD will need to contact the Corps again for another visit.

SCC procedures

SCC information officer Ken Schrad again stressed there is a procedure for anyone, or any agency, to petition the SCC and raise a legal matter or dispute. He pointed out the SCC's Rules of Practice or Procedure, which says "persons having a cause before the commission, whether by statute, rule, regulation, or otherwise, against a defendant, including the commission ... shall proceed by filing a written petition."

The petition should include a statement of the action sought, and the legal basis for the SCC's jurisdiction to take that action, plus a statement of the facts as proof.

After such a petition is served, the rules state, the defendant answers within 21 days. "In my layman's words," Schrad said, "such a petition or request for declaratory judgment would need to be filed with the Document Control Center of the Clerk's Office of the SCC. Upon such filing, and service upon the party named in such petition, the 21-day period to respond to such a petition would start. Based on the facts stated in the petition and the responses received, the commission (by order) would determine the next course of action."

County's process 'complete'

Sullenberger said he felt the county had done what it needed to do. "This saga continues with all these issues," he said this week. "We had these myriad issues, and minute details, and we could only lean on professional people capable of making recommendations."

The project was on two parallel tracks he said - one at the state level, and one at the county level. Though some have asserted the county should be responsible for both, he said, "that's not our position."

He said the impression he gets is that all the state agencies are going to be watching the process every step of the way. "It's disconcerting to hear those explanations (from agencies this week). If the agencies that are responsible have limited resources and vague guide- lines, what should the county's position be? What should we depend on?"

The county, he said, relied on the advice of its attorney, Melissa Dowd.

"If an agency everyone assumed was going to be responsible doesn't do that, well, is that our problem? The state process appears to have been comprehensive," he said. "I don't claim to know every minute detail of the process, or what should have been reviewed. I had the impression the
SCC was orchestrating all that."

Further, he said, the county's Technical Review Committee reviewed everything it was supposed to from Highland's perspective. That's what happened." As for who's responsible for what at the state level, Sullenberger said, "the county's process is complete, and our professional (Dowd) said it's not our responsibility."