August 21, 2019
Kansas

Commission discusses road conditions on wind farm project

By Patty Decker | Hillsboro Free Press | August 21, 2019 | www.hillsborofreepress.com

The Marion County Commission took action at its meeting on Aug 19 in order to get the attention of the contractor responsible for road maintenance and repairs on the Diamond Vista wind farm project.

By a unanimous vote, the commission directed Brad Jantz, county counsel, to relay the issues about the road conditions to the project’s parent company, Enel Green Power, as the first step in enforcing the agreement between the county and wind farm officials.

Of major consequence to EGP-Diamond Vista is that if the road maintenance agreement isn’t satisfied, could be the suspension of the conditional use permit now in place.

The reason for the county’s decision to go with a more formal approach to the RMA was prompted by emails back and forth from Kirkham Michael, the engineering firm hired to oversee Marion County interests, and Enel Green Power.

Tanner Yost and Dave Prater, both with Kirkham Michael, attended the meeting to answer any questions about the situation.

Under the RMA, the contractor for EGP and Diamond Vista, are citing “force majeure” (acts of God) as one reason why they are not responsible for certain road repairs.

Commission chairman Kent Becker said: “So, it’s these two words that’s causing a lot of problems?”

Jantz said: “It’s not just the two words, but EGP’s interpretation of how that agreement has been written versus how its plain language in the four corners (of the contract) reads.”

In further explanation, Jantz said the project contractor could say they haven’t been on particular roads since they were fixed. And, after an inspection at that time, they are “off the hook.” But, that’s not the case, he added, because the roads weren’t inspected and cleared.

Commissioner Randy Dallke asked about the list of roads and how many of those had culvert issues.

“Do we need to have something done immediately?” Dallke inquired.

The county’s engineer, Brice Goebel, said he agreed the commission needs to look at road safety, and about the culvert issues causing accidents.

Not only do the wind developers traverse county roads, Prater explained, but they construct entrances from those roads and fields to the towers. There are safety issues involved regarding the number of entrances and where those are placed.

One example Prater said was with the operations and maintenance building and substation where the contractor has cleaned the ditch going south on Indigo over a half a mile down to the waterway.

“That ditch is totally cleaned,” he said, “but why aren’t they doing it everywhere else?

“It’s because with the ditch cleaned, it’s diverting water away from the O&M building.”

The entrances to the wind turbines also interrupt drainage, said Commissioner Dianne Novak, so the standards for culverts and placement become an issue.

She added that driving heavy loads over agricultural land often endangers drainage tile lines, causing the problems the county is seeing, too.

On Aug. 9, Yost sent an email to Jeff Pimer, EPG, regarding the haul route maintenance, identifying 15 areas that needed to be addressed. And, prior to that list, Yost had emailed routes that needed work as soon as possible.

Those roads identified on Aug. 6 included: Nighthawk from 340th to 360th; 340th from Jade to Pawnee; 350th from Falcon to Alamo; 340th from Kansas Highway 15 to Falcon and 370th from Indigo to Old Mill Road.

Pimer responded to Yost with the following information, including “force majeure” as a reason for not believing EPG is responsible.

The following are the roads Yost identified and Pimer’s explanation to include:

Nighthawk from 340 to 360. Diamond Vista last repaired this road on July 9, the project is still using the road and conducts maintenance as construction activities take place. The specific damage that you listed was caused by force majeure events, and therefore requires county maintenance. There is a safety risk at locations where county culverts could not handle the excessive rain event and cause the road surface to fail. The ultimate repair of this culvert and the respective section of road is the county’s responsibility. Diamond Vista, in the interest of safety, can use road material within its inventory to temporarily patch the failed areas upon approval of the county.

Culverts on Nighthawk need to be fixed ASAP. Diamond Vista last repaired this area on July 9. The project is still using the road and conducts maintenance as construction activities take place. The specific damage that was listed was caused by force majeure events and, therefore requires county maintenance. There is a safety risk at locations where county culverts could not handle the excessive rain event and caused the road surface to fail. The ultimate repair of this culvert and the respective section of road is the county’s responsibility. Diamond Vista, in the interest of safety, can use road material within its inventory to temporarily patch the failed areas upon approval of the county.

340 from Indigo to Pawnee. Diamond Vista last repaired this road on July 9 and has not used the road for construction activities since. Pimer stated that 100 percent of the damage was a result of non-Diamond Vista causes, such as force majeure events.

370 from Kansas Highway 15 to Indigo. Diamond Vista last repaired this road on Aug. 7 and has not used the road for construction activities since. Pimer said 100 percent of the damage was a result of non-Diamond Vista causes, such as force majeure events.

Indigo from 360 to 370th. Diamond Vista last repaired this road on July 8 and has not used the road for construction activities since. In addition, 100 percent of the damage was a result of non-Diamond Vista causes, such as force majeure events.

360 from Indigo to Old Mill Road. Diamond Vista last repaired this road on July 9 and has not used the road for construction activities since. Again, he said 100 percent of the damage was a result of non-Diamond Vista causes, such as force majeure events.

Indigo from 330 to E02. Diamond Vista last used this road for construction activities on July 30 and the road was repaired after its use. He said the road hasn’t been used since that time, and 100 percent of the damage was a result of non-Diamond Vista causes, such as force majeure events.

Jade from 330 to 340th. Diamond Vista last repaired this road on July 9 and has not used the road for construction activities since.

340 bridge between Limestone and Mustang needs work as soon as possible. Diamond Vista last repaired this road on July 9, and the project has not used the road for construction activities since. The specific damage that you listed was caused by force majeure events, and therefore requires county maintenance. There is a safety risk at locations where county culverts could not handle the excessive rain event and caused the road surface to fail. The ultimate repair of this culvert and the respective section of road is the county’s responsibility. Diamond Vista, in the interest of safety, placed steel mats and covered it with road material over the bridge. Similar to the issues at Nighthawk, he said, Diamond Vista can use road material within its inventory to temporarily patch the failed areas upon approval of the county.

350 from Falcon to Alamo. Diamond Vista last repaired this road on July 9 and has not used the road for construction activities since. Pimer said 100 percent of the damage was a result of non-Diamond Vista causes, such as force majeure events.

340 from K15 to Falcon. Diamond Vista last repaired this road on July 9, and has not used the road for construction activities since. He said 100 percent of the damage was a result of non-Diamond Vista causes, such as force majeure events.

Falcon at the intersection of string road to F04 plugged. Diamond Vista last repaired this road on July 9 and has not used the road for construction activities since. He said 100 percent of the damage was a result of non-Diamond Vista causes, such as force majeure events.

The intersection of 350 and Chisholm Trail needs to be rebuilt. Diamond Vista last repaired this road on July 9 and has not used the road for construction activities since. Adding that 100 percent of the damage was a result of non-Diamond Vista causes, such as force majeure events.

Falcon from F01 to F07. Diamond Vista last repaired this road on July 9 and has not used the road for construction activities since. And, 100 percent of the damage was a result of non-Diamond Vista causes, such as force majeure events.

Diamond from 340 to 370th. Diamond Vista last repaired this road on July 9 and has not used the road for construction activities since. Pimer added that 100 percent of the damage was a result of non-Diamond Vista causes, such as force majeure events.

In the event certain roads are in need of repairs before Pimer or another EPG official responds, Jantz requested Goebel to track that activity.

“If we do repair roads by intervening proactively,” he said, “we will need to do a paper trail because I don’t want to affect a waiver by (EGP) saying the county went ahead and fixed it, and got on our road so now it’s all wrong and we won’t fix it.”

Novak added that regarding the April 9 email, EPG’s contractor was fixing the roads. She said the rains came, and they were fixing them, and another rain came and the roads were again fixed.

“But now,” she said, “they are claiming force majeure.”

Jantz added: “They are also saying that on a lot of these roads, there hasn’t been any contact since July 9. I don’t care, to be honest at this point. The way the RMA reads, this continues until (KM) does a final inspection on the whole thing.”

Dallke asked Sharon Omstead, director of the planning and zoning department, about how the process works when rescinding a conditional use permit.

Omstead said it is the same process as getting a CUP.

“There is a public hearing,” she said, “and then it goes back to the planning commission and then the commission makes a recommendation to you, as a board.”

The recommendation could have suggestions, changes or modifications, she said.

Jantz added that it would also shift the burden to EGP.

URL to article:  https://www.wind-watch.org/news/2019/08/21/commission-discusses-road-conditions-on-wind-farm-project/