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This week, that appears to be also true for the state's Department of Conservation and Recreation, which is assisting Highland officials in getting Highland New Wind Development to comply with Erosion and Sediment control regulations.
The final E&S plan was approved by county building official Jim Whitelaw, with assistance from the county's hired engineering firm Mattern & Craig.
But that plan came under fire from landowners downstream from the proposed 38-megawatt utility. They claimed the plan fell far short from meeting Virginia regulations for protecting waters from sediment and stormwater runoff that could do damage to the Laurel Fork stream and its ecologically sensitive habitats.
Landowners Lucile Miller and McChesney Goodall gave notice to HNWD and the county they would pursue legal action if the E&S plan wasn't improved.
Following sharp warnings from HNWD's attorney and a reply from the county saying the E&S plan was fine as approved, Miller and Goodall have been reviewing their options.
Most recently, they learned that DCR inspector Mark Chambers had issued a seven-page report requiring the developer to make numerous changes to the E&S plan by mid-October.
Chambers did an initial review of the plan in July, and told county officials it lacked enough basic information to complete a full evaluation. His concerns then were similar to those expressed by the landowners.
Officials at the Department of Game and Inland Fisheries also asked for similar details in order to complete their review of the company's plans. This week, they had not yet decided on how to address the lack of information and DGIF staff were internally discussing the best approach for getting specifics they need.
Highland supervisors talked about the extensive changes to the E&S plan at their meeting
Tuesday.
Supervisor David Blanchard wanted to know whether the company should continue with construction under the current E&S plan when so many modifications were needed.
County attorney Melissa Dowd said such changes to plan were anticipated, and typical.
"It's amended as you go along," she said. "My understanding from Mr. Whitelaw is that they are going to amend the plan."
She also told Blanchard DCR had no authority over HNWD's E&S plan. "Jim Whitelaw is responsible for the E&S plan, and he does not have to accept DCR's recommendations. He has local authority ... DCR cannot tell him what to do."
DCR does have authority over HNWD's Storm Water Pollution Prevention Plan, however, Dowd said, which is what Chambers had inspected. If he made recommendations for changes to the SWPPP, "they've got to do it," Dowd said. "But the E&S plan remains in Highland County's authority."
Supervisor Robin Sullenberger said he'd had a discussion with HNWD attorney John Flora about Chambers' recommendations. "There's every indication DCR is very actively engaged," Sullenberger said, adding HNWD "is not overly enthralled with it, but not resisting the changes either."
Blanchard also asked about the stormwater runoff that will go into West Virginia, which is out of DCR's jurisdiction.
Chambers mentioned on his report that HNWD's SWPPP permit was for Virginia only, and the developer would have to consult West Virginia authorities for runoff to Pocahontas County, across the state line.
Dr. Pamela Dodds, who has been reviewing HNWD's E&S plan for the landowners, was invited to make a presentation on her findings to the Pocahontas County Commission Tuesday.
She explained the area near the southwestern end of Tamarack Ridge includes stormwater drainage into West Virginia directed under U.S. 250 through a 24-inch culvert; the water would drain into Little River, in the Monongahela National Forest. HNWD's current E&S plan, she said, does not provide any protection for that area. Headwaters of mountain streams are critical to habitats, particularly trout streams, she said.
If stormwater flow from the project site carries heavy sediment, that will cause erosion in the streams, she said. Little River is protected as a Tier 3 river and classified as a trout stream by the West Virginia Department of Environmental Protection.
July 1, the DCR issued the Virginia Stormwater Management Protection general permit for discharges of stormwater from construction. It's a general permit that covers all construction activity in Virginia. When a company wants coverage, all it has to do is register for coverage under the statewide general permit, and refer to its approved E&S plan. HNWD registered for coverage under the general permit, and it was approved by DCR construction permitting manager Eric Capps.
Capps explained Virginia cannot review each registrant's plans individually. The agencies receive some 2,000 a year, he said. Instead, it assumes an approved E&S and stormwater management plan have covered the regulatory bases.
That would also assume HNWD properly delineated a stormwater drainage area that crosses state lines, and that the developer got approval from the other state's agencies for that drainage.
But as Dodds points out, that's not what happened. HNWD's E&S plan approved by the county did not contain properly delineated drainage areas, and did not acknowledge drainage into West Virginia.
One federal code states that while a regional administrator and the state may agree to waive EPA review of certain classes or categories of permits, no waiver of review may be granted for some things, including discharges which may affect the waters of a state other than the one in which the discharge originates.
Capps said that code seems to refer to permit reviews, not issuance. "It is my understanding that the EPA did not waive the review of the VAR10 general permit for discharges of storm water from construction activities," he said, indicating it referred to the general VAR10 permit granted to the state, not individual permits issued for developers.
And that, says Dodds, is precisely the problem. "Everybody makes assumptions that everyone else has gone through permit details with a fine tooth comb," she said. "The most important fact here is that these regulations are written with the intent to protect a state to the same standard ... they're not doing that. These are vague enough review processes that the assumption is, the E&S plans are not deficient."
Capps did not review HNWD's E&S plan. It was not until recently, when Chambers inspected the stormwater management plan, that DCR found HNWD's project site would discharge into West Virginia.
Now what happens? Dowd and other county and state officials insist all deficiencies can be corrected, and that's normal for any project.
Pocahontas officials, however, want HNWD and Highland County to meet their responsibilities to West Virginia. The commission is sending a letter to the West Virginia Department of Environmental Protection asking that agency to do something about it.
Dodds said she had not seen any verification the Environmental Protection Agency had reviewed the document from HNWD. "The intent of the law is to protect property on adjacent states to the same standard of protection in the state where the construction is occurring," she said. "By not insisting that HNWD should provide an adequate drainage basin delineation ... DCR has evidently not provided an adequate review of the E&S plan."
What did the inspector find?
Chambers' Aug. 25 SWPPP inspection report listed items HNWD needs to address by Oct. 12.
Asked whether HNWD's plan would adequately protect the Laurel Fork water shed, Chambers said that was a matter of speculation. "I say this because even a plan that is in complete compliance with the regulations and that is implemented completely on site is still not capable of mitigating all possible circumstances, i.e. such as extremely large rain-events, or possibly an accidental spill of large quantity," he said this week.
DCR and DGIF officials had noted the site plan scale was insufficient for reviewing whether the plans met regulations. "I have requested in a recent inspection report that the plan be revised to provide proposed contours, limits of disturbance as well as other information," Chambers said.
"The designer will have to develop a more readable contour interval and scale to produce the proposed contours and other information." Dodds had previously pointed out a major soil type had not been described in HNWD's E&S plan. That omission, she said, meant the calculations for stormwater runoff were incorrect.
Chambers agreed. "The importance of soil types, in this particular instance, is in identifying which of the four hydrologic soil groups that the different soils on site fall into," he explained.
"These soil groups are used, among other factors, in determining the runoff coefficients that are used in the hydrology computations. These hydrology computations are used in determining whether or not the site meets regulatory requirements pertaining to post development runoff and if required are also used in the design of post-development stormwater management facilities. In a recent inspection report, I requested that adequate channel analysis be performed for all points of concentrated discharge on site. During a recent phone conversation I also asked the designer to confirm that the correct hydrologic soils groups are used in developing the runoff coefficients."
In his inspection report, Chambers made the following comments and recommended corrective actions to HNWD's contractors:
• A more comprehensive sequence of land disturbing activities, including information about backfill and stabilization of the transmission lines.
• Record start and completion dates for all major grading work.
• Add project start date for the construction entrance, substation, sediment traps, soil stockpiles, etc., and all subsequent major grading activities.
• Record date of stabilizing earth structures and all others.
• Estimate of total land disturbance may need to be updated after amending the E&S plan.
• Include chemicals associated with construction of turbines, like lubricants, solvents, primers, and others.
• Identify discharges related to the concrete batch plant. "It is important that all potential
pollutants related to the plant be prevented from becoming a part of the stormwater discharge from the plant area," Chambers noted.
• Provide proposed contours and limits of cleaning and grading for cut and fill slopes.
• Show sediment control structures and stabilization practices for all land-disturbance.
• Add a list of subcontractors including which pollution controls they are responsible for.
• After proposed contours have been designed, provide sediment control structures for all
disturbed areas.
• Provide water quality calculations in accordance with regulations.
• Provide adequate channel analysis for all discharge points; include detailed drainage area maps showing land use, vegetative conditions, hydrologic soils groups, and others.
• Provide a list of waste materials associated with the concrete plant, and a list of chemicals associated with the plant; address how they will be stored.
• A sediment trap was added at the Red Oak construction entrance; provide drainage area
calculations for the trap and make necessary adjustments if the area is greater than three acres.
"This should be taken care of as soon as possible to ensure that there is an adequate control for the drainage area," Chambers noted. He added other comments, citing state regulations for each.
Those included:
• Culvert inlet protections are proposed in areas where the drainage exceeds the maximum recommended, he said, recommending other sediment traps.
• There are no sediment controls proposed for the transmission line installation between Red Oak and Tamarack, he said. "The drainage areas above the transmission line are too large for silt fence and the construction of diversion dikes and sediment traps would cause more land disturbance and pose a greater threat to the stream than the transmission line itself," he said.
"Therefore, please add notes and symbols to the plan that require completed sections of the transmission line to be stabilized with seed and erosion control matting at the end of each day."
• Provide information on how the transmission line will be installed across the "streamlets."
• Show soil stock piles and work areas associated with directional boring at stream crossings.
• Grading required along U.S. 250 for sight distance is not shown; add grading activity to the plan.
• Review the SWPPP and make necessary amendments to make it current with revised plans and conditions on site.
• The transmission line will be bored under three streams but vehicular stream crossing is not addressed; explain how equipment will access each side of the stream.
Finally, Chambers noted, "This report should not be considered a comprehensive list of requirements needed to bring the SWPPP into compliance. Only after a more detailed E&S plan including proposed contours, limits of clearing and grading, and complete hydrologic and hydraulic analysis is complete can all of the requirements be identified ...
The SWPPP revisions that affect the E&S plan may require review and approval by (Highland). Please note that until such a time a revised SWPPP is approved, the operator is responsible for implementation of additional control measures not covered in the current SWPPP."
Chambers will inspect again on Oct. 13.
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