Highland Wind warns citizens about legal action

By Anne Adams • Staff Writer

MONTEREY — Landowners got a sharp warning from Highland New Wind Development last week.

Lucile Miller and McChesney Goodall, who filed notice of their intent to take legal action if HNWD didn't comply with Virginia Erosion and Sediment control regulations for its 38-megawatt wind utility, were told in no uncertain terms by the developer's attorney that serious and costly consequences could be attached to any such challenges in court.

"My clients have instructed me to evaluate the availability of relief for continuing misconduct aimed at damaging and injuring HNWD," wrote company attorney John Flora.

The Aug. 12 letter of intent from Miller and Goodall claimed HNWD's Erosion and Sediment Control plan, approved by Highland County building official Jim Whitelaw, did not meet minimal requirements under state regulations. They told HNWD, and the county, that either of them had 15 days to take corrective action "before we apply for injunctive relief."

They both own property downstream from the wind project site, with frontage on the Laurel Fork trout stream, and said their land was in "imminent danger of being damaged by inadequately controlled storm water runoff and sediment. They pointed to several inadequacies in the plan, including those previously listed by Mark Chambers, a compliance specialist for the Virginia Department of Conservation and Recreation.

Flora's Aug. 17 response to them said, "You should know that the deficiencies you outline aired by mark Chambers … were subsequently reviewed, discussed and dealt with, resulting in changes to the now approved (E&S) plan. In addition, you should also know that Rifle Ridge Farm (Goodall property) and Laurel Fork LLC (Miller property) are not in any danger of being damaged by the land disturbing activities occurring at Red Oak Ranch LLC. Your properties are miles away from the project site at Red Oak. If you file for injunctive relief, be assured that my client will request attorney's fees incurred in the matter and other relief that may be available for bringing a frivolous lawsuit."

Further, Flora told them, "The available courses of action may include defamation, business conspiracy and tortuous interference with a business expectancy."

Flora also referred to a comment made by Pen Goodall, a brother with interest in the downstream family property, about blasting at the project site.

"Mr. Pen Goodall's statement that blasting and dynamiting are occurring at the project is patently untrue and it is then repeated in writing by Ms. Miller to DCR … We believe these are examples of a pattern of conduct that has injured and damaged HNWD," Flora wrote.

Miller replied to Flora Aug. 19. She explained she was referring to the only E&S plan available, and said, "The experts that I have asked to look at it are using the most recent update that they have available. Please tell me where to find the E&S Plan that corrects the deficiencies set forth in the 15-day notice that you received a copy of.

"You are correct that Laurel Fork LLC is miles from the project site, but sediment travels," she said. "That is why the Chesapeake Bay Foundation works to prevent sediment in streams across the state, streams that are even hundreds of miles from the Bay but nevertheless impact it. In this case we are talking about one of the region's most pristine naturally reproducing trout streams. My goal is to protect the biological integrity of Laurel Fork. Impacts such as storm water runoff and sedimentation are major causes of the loss of Virginia's native trout streams."

Miller also noted the Goodalls' Rifle Ridge Farm adjoins the project site. "I cannot understand what prompted you to say that Rifle Ridge Farm is miles from the project site," she wrote. "Please explain."

As to blasting, she reported to DCR, she told Flora she made it clear in her email to the agency her information was secondhand. "Ches Goodall affirms that he also heard 'thuds' coming from the direction of the McBride property, so both he and Pen were hearing something that sounded like explosions," she said. "Do you know what could have been making that sound? Was some sort of underground testing going on? If Pen and Ches were mistaken about the source of the noise, it was an honest mistake.

"If I can be convinced that the HNWD project has an E&S plan that meets state requirements and that HNWD is being diligent in the implementation of that plan, there will be no need for me to be a party to a suit," she continued. "I am not the sort of person that enjoys bringing suit, but I am committed to helping conserve the biological integrity of the Laurel Fork watershed, not for personal gain but rather to preserve valuable assets found in the watershed for today and future generations. Ches Goodall shares that commitment.

"If Mr. McBride decides to pursue the claim of 'defamation, business conspiracy and tortuous interference with a business expectancy,' I expect to be able to convince a judge that I have acted within my rights as a citizen. My intent has never been to harm Mr. McBride or interfere with his proper rights. I am aware of no 'misconduct aimed at damaging and injuring HNWD' for which your client should seek relief. My actions have been directed toward helping assure that the laws and regulations of the commonwealth that help protect natural resources are upheld and that the property rights of nearby landowners are also respected as required by the state."

This week, Miller said she had not received a reply to her letter. She and Goodall did receive a response from Highland County attorney Melissa Dowd Aug. 19, saying Whitelaw had reviewed their letter and informed supervisors it did not require any changes to the E&S plan he approved.

"According to Mr. Whitelaw, the majority of the issues you cite in your letter were dealt with to the satisfaction of the Virginia Department of Conservation and Recreation and to the satisfaction of Highland County in the final E&S plan that was submitted," Dowd wrote. "The majority of the comments by Mark Chambers on which you rely were addressed to the satisfaction of the county's engineers and Mr. Whitelaw."

She suggested they review July emails from Jim Echols, DCR regional director in Staunton.

"As you also may know, Highland New Wind Development received a (Storm Water Pollution Prevention Plan) permit from DCR effective July 30," Dowd continued.

She noted DCR officials conducted an inspection Aug. 17 and completed E&S and SWPPP inspections Aug. 19 (see related story).

"The E&S requirements and plan may be amended based on comments made during these inspections as the project proceeds," Dowd explained. "The county will continue to ask Mark Chambers and Jim Echols for assistance as this project moves forward. Therefore, the board of supervisors believes the county and the landowners in the western part of the county are adequately protected under Virginia law."

Dr. Pamela Dodds, the expert Miller asked to review the E&S plan, says there are still some issues in the plan that have not been addressed.

For example, Miller and Goodall said the E&S plan must provide a level of detail to meet requirements of state E&S regulations. "Specifically, the plan scale of 1 inch equals 500 feet and the 40- foot contour interval does not describe the existing site conditions in enough detail to determine the scope of work that will be required to complete the project," they asserted. "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 the land disturbance it will take to complete the project or the types, sizes and location of erosion and sediment control measures that will be required for this project."

This same problem was noted by Chambers in July, and by officials at the Virginia Department of Game and Inland Fisheries last week who said they had asked HNWD to provide a scale that enabled them to see more detail also.

The overall scale of the topographic maps has not been revised, though a scale of one inch equals 50 feet is provided for detail insets of boring locations, the typicals of the turbine sites, the portable concrete plant site, the substation site and a site grading example, Dodds says.

Also, Dodds points out, the contour interval of 40 feet, which Chambers also mentioned as a problem, still exists. A smaller contour interval of two feet, as E&S regulations call for, is only shown on substation details, some of the proposed road for the substation, and part of one turbine site.

While a typical section for the road design is on the plans, the actual contours at the road locations are not shown, Dodds said. The limits of land disturbance are not shown, either, though the 1,600- foot setback line is provided.

Miller and Goodall also noted there was nothing in the E&S plan addressing vehicles crossing the streams; that information has not been added.

Whether there are adequate channel requirements for increased flow of water from the site, Dodds said, is impossible to answer because the sub-drainage areas were not properly delineated and the storm water calculations are based on the wrong types of soils making up the site.

Dodds provided landowners with an update Aug. 19 following her second review of HNWD's E&S plan. In it, she says the storm water calculations are misrepresented, and the storm water will drain onto land within the Monongahela National Forest in Pocahontas, W.Va.

Dodds says there are still two critical deficiencies in the developer's plan — inadequately showing where storm water will drain, and misrepresenting the soils of the drainage areas. She cites state regulations for showing these details on E&S plans and explains why they are important. She concludes HNWD cannot provide an adequate assessment of storm water management unless calculations are based on properly delineated drainage areas and the right soil types in the area.

Also, she said, "The consequences of storm water drainage onto national forest land and onto land within the adjacent state of West Virginia should be considered prior to any construction. Compliance with federal law should be attained concerning storm water runoff onto national forest land. Compliance with West Virginia laws, specifically pertaining to the … permitting required by West Virginia, should be attained prior to storm water runoff onto land within West Virginia."

By Wednesday this week, Miller had not decided whether to pursue legal action. She said a few of her concerns had been addressed, but not all of them, as Dodds had pointed out. "I will stay in touch with the experts to see whether to go further," Miller said.