By John McFerrin
From the project’s beginning the West Virginia Highlands Conservancy has opposed Corridor H. Even when it was only an idea–with nothing on the ground—we thought it was a bad idea, a big slice across the highlands that would be destructive but of little benefit.
In Fighting to Protect the Highlands: The First Forty Years of the West Virginia Highlands Conservancy, David Elkinton describes it this way: “In essence, the Conservancy questioned the basic need for a controlled-access four-lane highway, preferring instead an upgrade of existing U.S. Route 33, U.S. Route 50, and other feeder routes.” This was describing our position in 1974 and today. Indeed, our affiliated group Corridor H Alternatives has the same idea in its name and shares this view.
From time to time, however, we are reminded that Corridor H is not just a bad idea in its conception. The execution of that idea has been destructive as well. This is one of those times.
The most recent indication of flawed execution of the idea appears in the enforcement action that the West Virginia Department of Environmental Protection has taken against Kokosing Construction, the construction company currently working on the project.
The enforcement action is summarized in a Consent Order No. 8893 agreed to in October, 2020, between the Department of Environmental Protection and Kokosing Construction. It sets out the company’s violations and then sets out what the company has to do as a result.
The Consent Order is two hundred pages long. Much of this (over 160 pages) is tables and pictures. The part that sets out what Kokosing Construction actually did is about thirty pages.
The description of the violations goes on and on for page after page in a dreary pattern: there was an inspection, some number (usually six or seven; Kokosing’s personal best was fifteen) of violations were found, and a Notice of Violation was written.
Although there was one violation for installing tanks containing petroleum products in the wrong place and without spill containment, almost all were for allowing sediment to go to the streams. The affected streams were Panther Run, Haddix Run, Fools Run, Baldlick Run, Laurel Run, Wilmoth Run or their tributaries. They are located in Randolph County, near Kerens.
Many of the violations were for sediment in the streams. Most often, a day’s violations included both sediment in the streams and failure to do some things that were designed and approved to prevent sediment. For example, the company is supposed to install structures to control sediment before clearing and grubbing an area. Kokosing did it the other way around, doing the clearing and grubbing before installing the sediment control. The company is supposed to have basins to catch sediment; Kokosing would have basins but they were too small, the sediment laden water was bypassing them, or they were otherwise ineffective. Slopes were supposed to be reseeded; they didn’t do that.
These are not “alleged” violations. Although enforcement procedures allow the accused a chance to show that they did not do what they are accused of, we are past that. This is a Consent Order; this is what Kokosing Construction agrees that it did. Companies who enter into consent orders agree that they did the thing of which they are accused and agree to a penalty.
In this case, the remedy is that Kokosing will submit a plan for correcting the violations and then both correct the violations and the conditions that led to the violations. In addition, it will pay a fine of $640,358.
The Consent Order is not yet final. With Consent Orders such as this, the Department of Environmental Protection is required to publish it for public comment and consider what the public has to say before the Order is final.
The West Virginia Highlands Conservancy, in cooperation with the West Virginia Rivers Coalition and the West Virginia League of Women Voters, had a lot to say.
Penalties in cases such as this are not just plucked out of the air. They are the result of the application of a formula. The formula lists several factors which are supposed to be used to increase or decrease the penalty. The groups contend that the appropriate enhancements were not applied.
The first of the enhancements the groups mention in their comments is the consideration of the sensitivity of the environment. Haddix Run is listed in the West Virginia Water Quality Regulations as a Tier 3 Stream. Tier 3 Streams are “outstanding national resource waters.” They include waters in Federal Wilderness Areas, specifically designated federal waters, and high quality waters or naturally reproducing trout streams in state parks, national parks, and national forests. Kokosing discharged sediment into tributaries of Haddix Run. In spite of this, the calculation of its penalty considered the sensitivity of the environment to be minor. It should have been considered as the most sensitive. If a Tier 3 stream is not sensitive, what is?
Second, Kokosing is a repeat offender. In 2018 the Department of Environmental Protection issued a cease and desist order for this operation and required a plan of correction. The company’s behavior did not change. The Consent Order lists twenty seven Notices of Violation. The penalty calculation rules allow for an enhancement of the penalties for repeat offenders. In spite of Kokosing’s record, the Department of Environmental Protection did not enhance the penalty.
The DEP also failed to account for the loss of enjoyment of the environment as the rules require. In calculating the penalty, it acted as if no one lives there and that no one was harmed by having the streams filled with sediment. The South Fork of Haddix Run is a native brook trout stream. Those who fish there have lost the full enjoyment of that stream. In addition to the fishermen, local residents have experienced loss of their recreational opportunities. The penalty should reflect that.
Finally, DEP should account for its full staff investigative costs. In this case, it did include in the penalty a sum for its investigative costs, a move which the groups applauded. The difficulty was that it included only $228. This does not remotely cover the extra investigative costs incurred by DEP because of Kokosing’s conduct.