Are more permits needed for the wind towers?

By Anne Adams • Staff Writer

MONTEREY — County officials said Tuesday that whether Highland New Wind Development needs additional permits for its utility here is still unknown.

Supervisor Robin Sullenberger Highland has received nothing from state agencies indicating the developer will need other permits for its 38-megawatt utility. Asked by residents to put a stop to construction, Sullenberger said there is "no valid or defendable reason to stop the project."

The county approved HNWD's final site plan Aug. 3, and the only changes expected now are those to the Erosion and Sediment control plan as directed by building official Jim Whitelaw, he said.

However on Wednesday, Keith Fowler, water permits manager for the Department of Environmental Quality, told The Recorder state officials are "pretty certain" one more permit is required, for air emissions from a cement plant on site to create the big foundations for each of the 19, 400-foot wind towers. "It all depends on who is doing the concrete work," he said. An air emissions permit is "mobile," meaning if HNWD hires a contractor who already has the right permit, no additional permit is needed. "It depends on who gets the job," Fowler said. "The uncertainty is really because there is certain information we have not received yet."

Fowler did some research with information from HNWD's engineer, Ed Blackwell, to determine what other permits might be needed. He said DEQ is still waiting for further information, but nothing at this point indicates other approvals are needed except for the cement plant.

Last week, Fowler explained there is still a question outstanding about the need for a Virginia Water Protection permit. There are two possible sources of water the company can use to make cement. If HNWD uses a spring box, it may not need a permit. If it uses water from a spring-fed pond on site, a permit could be needed, he said. "I'm not 100 percent confident," he stressed. "It depends on how much water is pulled out … but they would most likely need to apply for a VWP."

The way the regulation is written, if water is pulled from spring box, in either case, HNWD does not need a permit as long as fewer than 10,000 gallons per day are withdrawn. "On its face, they don't need permit from us, but the responsibility is theirs to make sure," he said. "If they don't ask for help from us they need to be sure they're not going to cause impacts to aquatic species." With an application for a VWP from HNWD, DEQ would check with other state agencies for any concerns about habitat or rare species in the area. "If we decided we could issue a permit, we could include contingencies to see that those things are protected," he said, again noting regulations call for a permit if more than 10,000 gallons a day are withdrawn.

Both the spring box and pond may end up draining into Laurel Fork, he explained. Much depends on the volume of water removed from the source, and the daily rate at which it's taken. "The way the regulations are written, different ones apply. Until water leaves a spring box, it's considered ground water. Once it's on the ground, it creates a surface water habitat," he said.

Blackwell explained to Fowler that water for the concrete will come from the outside water spigot at the existing house on the site. "The water for the house comes directly from an in-ground, covered spring box and not from surface water, and this spring is not the headwaters of the nearby creek," Blackwell said.

Blackwell said he would provide withdrawal rates from the plant manager, but said, "My initial thought is that (a permit) is not needed since we are not withdrawing from the ground. The concrete plant is to be onsite during construction only," he added, "estimated to be less than six months, so it is a temporary plant."

Fowler explained to Blackwell that if the water source is considered groundwater, there may be a use-reporting requirement for large volumes of water withdrawn, but if the water source is considered surface water, then it might not need a VWP permit unless other regulations apply. He said DEQ might need more information, and asked Blackwell for a diagram or photos of the spring box.

Oct. 2, Fowler told Blackwell and Tal McBride that based on information DEQ has received, "it doesn't look like any DEQ permit or reporting would be required" for using water from the spring box as long as the withdrawal rate does not exceed 10,000 gallons per day. "If water will be withdrawn from the spring-fed pond, there may be a need for DEQ approval for that, and you should provide details to us (regarding) any such water withdrawal."

Also, Fowler told them, "If the stormwater or other wastewater discharges from the concrete plant operations are not covered by a DCR stormwater general permit issued for this project, then you may need authorization for such discharges from DEQ. It appears that the concrete plant operation may need a DEQ air program permit or authorization … To date, no DEQ authorization has been granted for any impacts to state waters, including wetlands."

VWP permits are standard, Fowler said, and the way they are issued by DEQ they can stipulate how much water can be withdrawn from a source on any given day, or within a month or year, with maximum limits. Some times of the year, rare species may need more water than other times.

Water withdrawal permits are individual permits, requiring a public hearing, he said.

For most applications, DEQ "almost always" consults the federal Army Corps of Engineers. If DEQ does a preliminary review and determines there are rare species at the site, it also consults with state agencies like the Department of Game and Inland Fisheries and the DCR. Only in rare cases, he said, does DEQ get comments from the U.S. Fish and Wildlife Service for permit applications.

What about lubricants for turbines?

Fowler forwarded information about turbines' use of oil and other lubricants to other DEQ officials in order to determine whether HNWD might need to create a Spill Prevention Control and Countermeasure plan (SPCC).

DEQ experts said it does not

look like a permit will be needed for the equipment's oil.

David Robinett, of DEQ's Valley Regional Office, explained that equipment or machinery that contains oil for operational purposes is specifically excluded from DEQ regulations. "That excludes all the gear boxes, pendulum dampers and hydraulic units," he told Fowler. "Also, oil-filled electrical equipment, including, but not limited to transformers, circuit breakers, capacitors, etc., are specifically excluded from DEQ regulations … That excludes all the transformers. Thus, the only oil stored at these windmills that is not excluded from our pollution prevention regulation is the 'miscellaneous oil products in 55-gallon drums (average four) stored in an operations and maintenance building.' The AST and facility regulation covers only tanks larger than 660 gallons in capacity. So, these 55-gallon drums are not covered by the regulation. I believe the 55-gallon drums are considered by the SPCC regulations, but because the total for 'operations and maintenance building' is less than 1,320 gallons, the federal regulation may not apply. We do not administer the SPCC program in any way."

Inspector hired

Tuesday, Highland supervisors agreed to hire an independent inspector, a private consultant, to help over see the project and E&S plan work. Lewis Manhart will work directly for the county, at $150 an hour, a rate that kicks when he leaves his home in Augusta County for any amount of time he works. He was recommended by Virginia's Department of Conservation and Recreation.

Sullenberger said Manhart will work with Whitelaw and officials from the Department of Conservation and Recreation, and told citizens they could see all inspection reports generated.

County administrator Roberta Lambert explained that Highland's Erosion and Sediment Control Ordinance requires using a certified inspector, which is an employee or agent of Highland County who holds a certificate of competence from the board in the area of project inspection or is enrolled in the board's training program for project inspection and successfully completes such program within one year after enrollment.

Whitelaw holds the certificates to do inspections at the HNWD site and normally does all other E&S inspections.

"As you are aware, Jim serves as building official, zoning administrator and E&S administrator, secretary to the planning commission and secretary to the board of zoning appeals in addition to being a one-person office and also completing all clerical tasks," Lambert explained. "Jim indicated that it might be difficult for him to maintain all of these positions throughout the E&S portion of the project, taking into consideration peak work times, and the board chose to contract with an independent inspector. I have not heard the board discuss individually or in a board meeting their reasons for choosing to ask or not ask HNWD to pay for the cost of the inspector."

As to the adequacy of HNWD's current E&S plan, Sullenberger explained DCR had had ongoing visits, weekly visits, to the project site.

DCR told The Recorder, however, that inspector Mark Chambers' last site visit was Sept. 4, and no report had been generated.

"DCR gave HNWD a laundry list," said supervisor David Blanchard, referring to the things Chambers' required the company to do by Oct. 12 to comply with the E&S plan regulations. "How's that going?" Blanchard asked Mac McBride.

"Ask DCR," McBride replied.

He later told Blanchard he didn't mean to be curt in his answer, and said explained five DCR representatives came up on one day. "Everything DCR's asked, we've done it," he said. When DCR arrived, McBride he showed them "the mighty Laurel Fork" — a section only about a foot wide — and they looked at the Stormwater Pollution Prevention Plan and said it was as good as they've ever seen. "Then, we received this seven pages of things we had to do," he said.

Since the McBrides will be in Richmond next week for the SCC hearing on the day DCR intends to return for an inspection, McBride said he was going to ask DCR's inspector to postpone the inspection at least a day.

Wetlands concerns

Rick Webb of Mustoe said HNWD might need another one or two permits for one of the stream crossings. He gave supervisors three different maps from HNWD showing where wetlands areas were, and how the maps had changed with different delineations. "It seems HNWD is reluctant to admit there are wetlands there," he said.

DGIF told the developer it wanted equipment to be set back from the stream bank 30-50 feet, after seeing the site plan showing the setback still at 10 feet. HNWD replied to DGIF, saying it would move the equipment back further to DGIF's recommendations.

But, Webb said, at the one crossing, moving the equipment back that far means putting it in a wetlands area, which is not allowed without a joint permit from the Army Corps of Engineers and DEQ.

"Highland New Wind does not have all the permits and is trying to put off that decision until the last minute," he told the board. He invited the board to call DEQ for its opinion.

Rexrode asked Tal McBride, "You had the Army Corps out there; do you have the proper permits?"

"Yes," McBride replied. "Is this matter taken care of?"

"Yes," McBride said.

Webb told Rexrode the county should ask DEQ, not McBride. "You can actively solicit their input, or deal with it a year from now. The time to resolve these things is now," Webb said.

Sullenberger asked why DEQ wouldn't come forward and aggressively demand HNWD get a permit if it needed one.

Webb suggested DEQ would not do that based on a citizen's complaint, and again urged the county to ask the question. Fowler agreed Wednesday that it's true DEQ isn't likely to act on a citizens' complaint.

Webb told supervisors he believed HNWD would address this after the fact, as would agencies involved. "The Army Corps is not going to come back there," he said. "DGIF isn't likely to, either." He said agencies don't communicate with each other, and "they don't want to have to deal with difficult problems, just like the (county's) Technical Review Committee."

"You're asking us to delve into an area where we're not the experts," Sullenberger told him. "I'm asking you to ask them if another permit is needed," Webb said, adding he believed HNWD is not a reliable source for that information.

Mac McBride explained HNWD will drill under the stream, and under wetlands. He said DEQ, the Corps, and HNWD's consultants Malcolm Pirnie had all looked at the site simultaneously. Then, surveyor Jeff Hiner delineated the wetlands. "Then, we had the Corps come back," and it looked at the areas, and delineated the wetlands differently. He said he bushogs regularly in the area where Webb says wetlands exist, but added, "There's no question there are wetlands, and we're going to avoid them."

After Tal McBride accused Webb of continually contacting the state agencies, supervisors asked McBride for copies of Webb's letters to them, which McBride agreed to provide. Webb tried to explain that his letter to the DCR asked the agency to look at the concerns about the E&S plan before it issued a SWPPP plan. He pointed out the county had asked DCR for technical assistance, and DCR said it could not review the E&S plan because it did not contain enough information. But Rexrode interrupted him. "Things have moved on," he told Webb. "Get off that. That's been done." Webb again tried to explain that some of the problems with the E&S plan were significant, like properly identifying soil types on the site. Rexrode said, "You don't beat a project to death while you're just starting. You're trying to nitpick at stuff they're trying to correct."

Webb said the E&S problems should be worked out before construction, not later. "Maybe we ought to be paying you a compliment," Sullenberger told Webb. "You're trying to correct a much broader problem … and that's a noble effort. But do you expect us to be a part of fixing that?"

Webb said he could only speak for himself, but that yes, Highland County and this project would make a perfect case study for that problem. "That's not our problem to correct," Rexrode said.

Blanchard said he had called DEQ about the potential for more permits. "The state is still trying to figure that out," he said. "I'm not trying to make light of it, but this does concern me … and it should concern HNWD also, if something comes forward later due to the state agencies, that jeopardizes the project. It jeopardizes the county's revenue stream, and it jeopardizes HNWD's revenue stream. HNWD should be beating up on all these agencies, and they should be telling us, but they're not."