By Lyra Bordelon
Inadequate environmental protections have led to a consent order being filed against the Greenbrier County Commission by West Virginia Department of Environmental Protection (DEP) for the Greenbrier County Sportsplex.
In 2019, on the recommendation of their engineer, Greenbrier County Commissioners Lowell Rose and Mike McClung voted to remove field drainage from the Sportsplex’s $1 million contract for mass grading of the 140-acre site. According to Rose, the drainage was not needed if certain steps were taken as the contract moved forward. These mitigation steps were not followed, and, after the removal of silt drainage ponds on the Sportsplex site, the Greenbrier River turned orange with runoff from the project.
Following inspections in both October 2019 and August 2020, the DEP met with the contractors and the commission, and set the eight-page consent order, requiring action from the commission on these issues.
“We signed the form, sent it back to them, and are waiting to hear back from them sometime around the end of December,” Rose explained. “We’re not taking action on it yet other than meeting with the DEP and meeting with the contractor and the engineering company.”
Although the order has to first go through public comment before any potential penalties kick in, it would require the commission to fix the issues and pay an approximately $100,000 fine. According to Rose, Terradon is expected to pay a significant portion of the fine.
Silt in the Greenbrier River, and the subsequent notice of violation from the DEP, emerged from construction stormwater drainage and temporary boundaries put in for environmental protection. After the DEP received a concerned call about silt runoff, an inspector was sent to the site. Shortly afterward, on October 23 and 31, 2019, respectively, both the mass grading (Kanawha Stone) and clearing and grubbing (Baldwin Engineering) projects were issued a notice of violation against the Sportsplex project, citing rules set by the state legislature governing water quality standards.
“The contractor took out three of the five settlement ponds, which do come out eventually but shouldn’t be out until vegetation is established behind them to hold the soil and the silt washing down,” Rose said at the time. “They have to be put back in and they’ll do that at their expense.”
In January, the commission approved a $17,500 change order for additional silt control and required the contractors to fix any of the issues with the permits they might have caused, with Rose explaining his intention to hold funds from the contractor and engineer until the problems are resolved.
“The balance of that I’m planning to hold, with the other two commissioners, until we settle everything with DEP and we get our vegetation established, the drainage put back,” Rose said.
However, on August 7, 2020, WVDEP personnel conducted another inspection, noting that the Greenbrier County Commission, as the lead for the project, had failed to properly “implement controls” for silt water protection, with silt fences being “improperly installed in concentrated flow areas” and control devices being “improperly” used, did not properly maintain systems of treatment and control, failed to install diversions to direct runoff, failed to protect fill slopes, failed to reseed areas that failed to germinate after the initial seeding, failed to conduct inspections of erosion control devices, ultimately causing “conditions not allowable in water of the state by creating distinctly visible settleable solids in the Greenbrier River” and “creating sediment deposits on the bottom of the UNT of the Greenbrier River.”
After this inspection, DEP and the Greenbrier County Commission met on August 20. The current consent order, signed by Rose on August 22, would require the commission to submit a corrective action plan within 30 days, and would issue a fine “because of Greenbrier County Commission’s legislative rules and permit violations.”
“The Greenbrier County Commission shall be assessed a civil administrative penalty of $109,150 to be paid to the West Virginia Department of Environmental Protection for deposit in the Water Quality Management Fund within 30 days of the effective date of this order,” reads the document.
Rose explained that due to the circumstances of the violation, the county would not be paying a bulk of the tab, although the final amount could be informed by the comment period.
“Final numbers haven’t been decided yet and we do have an agreement with Terradon to take care of the bulk of the payment. … The reason they agreed to take care of it [is] they felt like they hadn’t advised us on things as well as they should have,” Rose said. “We’ve got a good relationship with them and appreciate them stepping up like they are going to.”
In addition, the county is expecting to pay for a portion of the citations from earlier in the project, before Terradon was involved.
Even with Terradon agreeing to pick up a good portion of the price of the contract, the commission is still looking at a higher than expected budget.
In August 2019, the commission accepted an approximately $1 million bid from Kanawha Stone, a sister company to Terradon. Although the initial bid totaled $1,530,922 for mass grading, the Commission voted to move forward without field drainage, cutting approximately $500,000 worth of work, including storm drainage for baseball and soccer fields. According to Rose, the drainage removed from the contract was not part of the drainage exposing the Greenbrier River to silt, but was a result of issues with “ditching, trenching, drainage” related to the DEP permit.
In October, advancing some of the work removed from the Kanawha Stone contract, the commission approved a $342,453.53 change order. Approved in a two-one vote (Rose, McClung yea, Tincher nay) the change order is expected to deal with some of the issues listed in the DEP Consent Order.
“It is storm drainage that was taken out of the original contract and some modifications to that storm drainage to meet the DEP request for the stormwater runoff and to mitigate that,” Rose said in October. “When the drainage was originally taken out, the reason the contractor said that could be deleted was that they could put drainage swells in to keep the drainage in check. Those were not done. Consequently, we are where we’re at.”
“That’s not a dollar amount I’m pleased with, that’s more than we had hoped for,” said Commissioner Mike McClung. “However I think we are probably in agreement that this is something that we cannot, not do.”
Citing the winter season and the massive loss of revenue to the hotel/motel tax, Tincher voted against the change order.
“I cannot support the spending of $340,000 for the Sportsplex,” said Commissioner Tammy Shiflett-Tincher in October. “This is a continued expense and we are over $2 million spent right now. There’s 1.1 million in the balance of the Arts and Recreation account currently, we have limited income coming in to the Arts and Rec account [from hotel/motel tax], so it is an unfortunate situation that the issues that have arose have come about but as you all recall in the same instance when the original vote was taken for this, you all voted not to have drainage and that was a major concern that I brought up. We would have issues without having drainage. I cannot support increased spending on the Sportsplex … I recognize it needs to be done but unfortunately I’m not willing to spend the money and vote for it.”
She later affirmed her reasoning.
“The numerous issues that have evolved are a testament to the fact that there is no plan, no budget, no oversight to the project,” said Tincher.
Both Tincher and Rose noted that although the consent order and inspections were done in August 2020, they likely would have been dealt with sooner by the DEP if not for the confusion of COVID-19 in their offices, as the issues with constructure were already under investigation by the DEP in late 2019.
The public comment period for the consent order continues until November 16 and can be made by emailing DEP.Comments@wv.gov or mailing the Public Information Office at 601 57th Street S.E. Charleston WV, 25304.
