Whitney Hill Wind Farm owners answer to over a quarter million dollars in accumulating fines

 

[September 24, 2019] 

At the Logan County Regular Board on Tuesday, September 17th, one focus of discussion was Whitney Hill Wind Farm Road Use Agreement violations and fines.

The prior Thursday at the Board Workshop, Logan County Highway Engineer Bret Aukamp said there have been several road use agreement violations that were to be paid within five days.

As of Thursday, Aukamp said it had been over a month and the fines still have not been paid. Tuesday, Aukamp initiated further discussion on the matter.

Guests at Tuesday’s meeting included representatives from Enel Green Power, the company doing the construction at Whitney Hill. Aukamp asked them to address the board.

Enel representative Jon Beck said the company had been fined between $370,000 and $380,000. Enel has paid $25,000 in fines to close out the road use agreement. Beck said on August 27, Aukamp had sent them an email saying he agreed with all the comments on the calculations on the use of two roads they thought were strong enough to withstand construction traffic. Fines for using some of these roads account for the other $340,000 they owe. Since reviewing the map, Beck said Aukamp had not made any comments on the changes.

Aukamp said the company was right about the Traffic Impact Analysis on the strength of the roadways and how much traffic they can withstand. For one roadway within the footprints, Aukamp said preliminary discussion showed it could not withstand traffic, but further analysis by the Farnsworth Group has shown differently.

The roadway was originally not going to be strong enough to withstand any components, but Aukamp said an analysis showed it could withstand empty traffic, then some of the loaded traffic. Information Aukamp received Tuesday showed the roadway could withstand all the loaded traffic. Aukamp wants to look at it closely to make sure the information is legitimate because last time he looked at the calculations, they were on the right track, but he wanted to make sure everything was on the up and up.

Because there are still some unanswered questions, Aukamp said most of the fines were issued because the plans and Traffic Impact Analysis showed that road was not to be used. Since revisions to the Traffic Impact Analysis have not been accepted, what is currently in place shows the road is not to be used by material trucks.

Aukamp has been working with Laenna Township to reduce the amount from the 16 trucks, they assumed had been using the road, down to seven that are using it.

The real question Aukamp was asking was why it has taken so long to get these fines paid. Aukamp said some of the fines had been out there for over a month and the townships have not received checks for them. He had not received responses back on these fines until a few days ago. Aukamp said he does not like having to bring the issue to the board in order to get a response. He was hoping to resolve it administratively.

Beck said when a fine that is over a quarter of a million dollars is presented to him and the project manager, they pass on the information because they need some guidance. Beck asked Aukamp what else he needs from the road use agreement, and he wants Aukamp to address comments after he has reviewed the most recent analysis.

What Beck said is incredibly frustrating is that there is not someone right there in the company with a checkbook to pay fines. He said it is a slow and painful process with Enel and it makes fines hard to pay in five days. They gave Aukamp a sheet showing the fines they are paying now.

When there is no burden of proof presented with the fines and what is presented just says “loose semi,” Beck said they have a photo of part of a truck with no license plates shown in the photo. The company must call around and figure out if it is their truck, and if so, whose it is. Beck said with thousands of deliveries, it is hard to track down the dates of the violations.

The company is not ignoring the fines, but Beck said what is in the Traffic Impact Analysis is unrealistic. He is questioning the $340,000 in fines, but the others the company will pay. Beck said the Geotech analysis was based off just a few samples of the road. As a road is built, the material changes and Beck said the road could be stronger than expected after installation.

Board member Bob Sanders asked Aukamp whether he had to sign off on the road use agreement for them to use the roads.

Aukamp said yes, for the road use agreement; the Traffic Impact Analysis must be accepted by several road authorities in the county. He must review it.

Sanders then asked who authorizes the “arrogant disregard” for the road use agreement.

Unfortunately, Beck said there was a breakdown, miscommunication, and not blatant disregard by any means. Some thought they could take empty trucks down the road and Beck said the contractors thought they could run with it. Beck said he told the contractors they could not use the road until it was approved by the county.

If the behavior continues, Sanders said the board needs to look at every option to get the company’s attention and responsibility for the problems land on the company He is sick and tired of all the problems and said the company needs to get its act together.

Sanders said if problems are not fixed, the company would have to explain to the higher ups why the project was stopped.

Beck said he let the project managers know of that possibility.

Board member Scott Schaffenacker asked Aukamp what he would recommend the board does.

The county controls the permits, but Aukamp said the fines are to be paid to the townships. Aukamp said he spoke to the legal counsel for the wind farm and informed her about the issue and her advice was that the board should not withhold building permits for this issue.

Board member Annette Welch asked if the board accepts the changes Farnsworth has submitted about the roads whether the fines would go away because of the miscommunication.

Since Aukamp said they were not sure of the strength of the roads when the work started, he would need to look at that and decide whether the fines would go away. The $340,000 was based on the number of trucks assumed to have used that road. There was not someone out all day getting photos of trucks, but Aukamp said there are photos of seven trucks going down that road. The fine would be reduced based on that number.

Assuming Enel has agreed to the terms of the agreement saying they should pay the fines in five days, board member Cameron Halpin said he did not want to sit and listen to them saying it was not going to happen.

Board member Dave Blankenship asked Beck for examples of what he thought was unreasonable about the fines. He said it was unreasonable that the board, as public servants, was having to deal with the company at 8 p.m. in the evening.

Beck said the assumption of the number of vehicles and chasing down the sources is a problem. The $300,000 to $400,000 for roads that have been improved seems wrong to Beck.

While understanding Beck’s point on lack of proof, Sanders said they have a contract and he does not like their excuse of miscommunication, calling it a deflection. Sanders wants the maximum fine to get the attention, but said the board should check with their attorney to see what their recourse is.

Since they knew it was impossible to pay the fines in five days, board member Chuck Ruben said Enel should have asked that be changed on the contract and not signed the contract. Ruben said he would not feel bad about putting up road signs to close the roads tomorrow.

Beck said the developer develops the project before approaching a company about purchasing it. When the company purchases the project, some agreements cannot be changed. Beck said it is past that point before the company has any comment and what they are stuck with. He said he was not making any excuses for Enel but trying to be realistic about the five days to pay the fines.

For future issues that cannot be resolved in a timely manner, Welch said she thought the board should call a special meeting and not presume they would not do anything for 30 days.

After the discussion, board member David Hepler said he thought it was best to take the issue back to committee for more discussion.

Welch then motioned to take the issue back to committee and the board unanimously approved.

[Angela Reiners]