NCW_Timbermill Wind's Response to DEQ NOV_2024-03-20

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March 20, 2024

VIA CERTIFIED MAIL WITH AN EMAIL COURTESY COPY

To: Mr. Samir Dumpor, PE
Regional Engineering Supervisor
North Carolina Department of Environmental Quality
Division of Energy, Mineral and Land Resources
Washington Regional Office
943 Washington Square Mall
Washington, North Carolina 27889
Email: [e-mail]

From: Hank Seltzer, Environmental Permitting Director
Timbermill Wind and Apex Clean Energy
120 Garrett Street, Suite 700, Charlottesville, VA 22902
Phone: [phone]
Email: [e-mail]

Project Name: Timbermill Wind Project
Project ID: Chowa-2023-002
County: Chowan

TIMBERMILL WIND’S RESPONSE
TO THE MARCH 13, 2024 NOTICE OF VIOLATION

Timbermill Wind, LLC (“Timbermill”) hereby provides this Response to the Notice of
Violation (“NOV”) issued by the North Carolina Department of Environmental Quality
(“NCDEQ”).1 As discussed in more detail below, Timbermill has strived to be transparent and
proactive by self-reporting these issues, voluntarily stopping construction activities, implementing
enhanced compliance procedures, and coordinating with NCDEQ and other regulatory agencies.
Timbermill wants to thank NCDEQ staff for their time and cooperation in responding to these
matters.

This Response has two sections. Section I of this Response summarizes the factual
background that led to this NOV. Section II provides the information requested by the NOV.

1 The NOV is dated March 13, 2024; however, Timbermill received the NOV on March
15, 2023. Timbermill is therefore providing this Response on March 20, 2024, five calendar days
after receiving the NOV.

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I. Factual Background

Timbermill previously provided a complete factual background in written self-reports
submitted to NCDEQ on February 1, 2024, and February 27, 2024. Timbermill also discussed the
facts and circumstances surrounding these events with NCDEQ inspectors during meetings on
February 21, 2024, March 8, 2024, and March 14, 2024. For brevity, Timbermill summarizes the
factual background here.

On January 25, 2024, Timbermill discovered a potential permit violation based upon a
discrepancy between the project’s Issued for Construction (“IFC”) design documents and the
project’s permitted design documents. This discrepancy related to the exact location of the
project’s authorized limits of disturbance (“LOD”). As a result of this discrepancy, limited tree
clearing and fill occurred outside of the project’s permitted LOD along an access road between
turbine 15 and turbine 22, as well as several other locations on site. Upon discovering this
discrepancy, Timbermill issued a Stop Work Order, investigated the matter, and self-reported the
matter to NCDEQ and the U.S. Army Corps of Engineers (“USACE”). Timbermill also responded
by implementing enhanced procedures requiring that all construction activity be pre-approved
prior to occurring. This pre-approval procedure requires confirmation that the proposed activity
complies with Timbermill’s permits. Timbermill took additional corrective actions as discussed
in more detail in the February 1, 2024 self-report. As discussed with NCDEQ inspectors during
meetings and site inspections, these design changes result in fewer impacts or no net change in
impacts to aquatic resources within the project. As such, Timbermill is respectfully requesting
permission from NCDEQ and USACE to incorporate these design changes into the project permits.

On February 26, 2024, Timbermill discovered that a subcontractor had cut down trees and
vegetation between a crane path and an access road between turbine 22 and turbine 23. The area
in question is about 100 feet long by 10 feet wide, an area of approximately 1,000 square feet. The
area had been staked off, and trees marked for retention. While trees and woody vegetation were
cut down, the cleared area was not grubbed or otherwise further disturbed. While both the crane
path and access road are within the permitted LOD, the area where the trees were cut down is not
within the permitted LOD. Upon discovering this issue, Timbermill took three immediate actions:
First, it issued a Stop Work Order suspending all land-disturbing activities on site.2 Second,
Timbermill terminated the subcontractor at issue and barred the subcontractor from the worksite.
Third, Timbermill self-reported this incident to the NCDEQ and USACE.

On March 1, 2024, Timbermill submitted to NCDEQ and USACE a Proposed Remediation
and Compliance Work Plan. A copy of this work plan is attached for reference as Exhibit C. In

2 This Stop Work Order remained in effect through NCDEQ and USACE’s site inspection
on March 8, 2024. As discussed during the site inspection with NCDEQ inspectors, because of
the increased compliance monitoring and other correction measures put in place, Timbermill lifted
the Stop Work Order and construction activity resumed on March 9, 2024.

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that proposal, Timbermill stated that it would remediate the 1,000 square foot area of cleared trees
in accordance with Section 4 of Timbermill’s Wetland Mitigation and Revegetation Plan.
Timbermill also discussed in greater detail the compliance measures it has taken to prevent future
violations. These measures are more fully discussed in Section II.3 below.

II. Information Requested

Page three of the NOV requests a written response that addresses the following topics: (1)
the date by which corrective actions listed above have been or will be completed; (2) rainfall data
and self-inspection or self-monitoring records from February 15, 2024 to March 8, 2024; (3) a plan
of action to prevent future violations; and (4) reasons why a civil penalty should not be assessed.
Each of these topics is addressed below.

1. Corrective Actions Have Been Completed.

NCDEQ identified the following action as necessary to correct the violations discussed in
the NOV:

Submit an approvable revised sedimentation and erosion control plan and the
appropriate plan review fee to this office. This plan must include all disturbed areas
outside of the original limits of disturbance. Also, adequate and appropriate
sedimentation and erosion control measures if needed, must be included in the
revised plan.

NOV at p. 2. NCDEQ further requested the “date by which the corrective actions listed above
have been or will be completed.” Id. at p. 3.

Enclosed for your reference as Exhibit A are revised sedimentation and erosion control
plan sheets for the areas in question where Timbermill is requesting approval of design changes.
Timbermill has instructed its engineer of record – Timmons Group – to create a complete revised
sedimentation and erosion control plan that includes these revised sheets and corresponding
appropriate sedimentation and erosion control measures. Timbermill has also requested that
Timmons Group recalculate the overall impacts of the project on aquatic resources and provide
updated impact tables, as well provide updated IFC and ESC plans for all changes that shows
which previously permitted impacts are no longer needed and which impacts have now been
revised. Timbermill will provide this information as soon as it becomes available but no later than
April 5, 2024.

2. Rainfall Data and Self-inspection/Self-Monitoring Records.

NCDEQ requested “rainfall data and self-inspection or self-monitoring records from
February 15, 2024 to March 8, 2024.” NOV at p. 3. This information is provided below.

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Rainfall Data Measured at Timbermill Wind3

Date Rainfall Amount
February 15, 2024 No rainfall measured.
February 16, 2024 No rainfall measured.
February 17, 2024 No rainfall measured.
February 18, 2024 No rainfall measured.
February 19, 2024 No rainfall measured.
February 20, 2024 No rainfall measured.
February 21, 2024 No rainfall measured.
February 22, 2024 0.50”
February 23, 2024 0.50”
February 24, 2024 No rainfall measured.
February 25, 2024 No rainfall measured.
February 26, 2024 No rainfall measured.
February 27, 2024 No rainfall measured.
February 28, 2024 No rainfall measured.
February 29, 2024 No rainfall measured.
March 1, 2024 No rainfall measured.
March 2, 2024 No rainfall measured.
March 3, 2024 No rainfall measured.
March 4, 2024 1.10”
March 5, 2024 0.60”
March 6, 2024 1.50”
March 7, 2024 No rainfall measured.
March 8, 2024 No rainfall measured.

Environmental Compliance Inspection Reports

Timbermill has contracted with Timmons Group to provide environmental compliance
inspections. Attached as Exhibit B, please find Environmental Compliance Inspection Reports
from Timmons Group from the following dates:

• February 21, 2024 Environmental Compliance Inspection Report;
• March 1, 2024 VSMP Inspection Report;
• March 6, 2024 Environmental Compliance Inspection Report;
• March 8, 2024 Environmental Compliance Inspection Report; and

3 These data are actual rainfall amounts measured at the Timbermill Wind project site.

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• March 13, 2024 Follow-up Report to the March 8th Environmental Compliance Inspection
Report.

3. A Plan of Action to Prevent Future Violations.

Timbermill submitted a plan of action to NCDEQ on March 1, 2024 referred to as the
Proposed Remediation and Compliance Work Plan. For convenience, Timbermill is resubmitting
this plan here as Exhibit C. Timbermill has already taken five corrective actions to prevent future
violations and proposes to take nine additional corrective actions going forward:

1. Timbermill implemented a Stop Work Order on February 26, 2024, and required all
contractors and subcontractors to acknowledge receipt of the Stop Work Order and to
adhere to its conditions. This Stop Work Order remained in effect until the site inspection
by NCDEQ and USACE on March 8, 2024.

2. Timbermill terminated the subcontractor responsible for the unauthorized tree clearing
from the site.

3. Timbermill instructed its construction contractor to replace its Senior Project Manager who
was responsible for all subcontractors.

4. Timbermill has increased the number of on-site environmental compliance monitors to four
full-time monitors.

5. Timbermill implemented a Work Authorization Procedure that requires prior approval by
the environmental compliance monitors before any construction activity can occur. These
procedures require that, for land-disturbing activity, the construction contractor or
subcontractor apply for a Work Permit Authorization. The environmental compliance
monitors review this application to ensure permit compliance, and only after permit
compliance is confirmed, does Timbermill issue a Work Permit that authorizes such work.

In addition to the actions already taken, Timbermill proposes the following additional
actions:

1. Timbermill will require all contractors and subcontractors to sign and return an
acknowledgement that they have received the Work Authorization Procedure, understand
it, and will adhere to its terms and conditions. No one will be permitted to undertake any
construction activity without first returning this acknowledgement.

2. Timbermill will maintain the four full-time environmental compliance monitors in place
until further notice, and will evaluate environmental compliance monitoring needs and
staffing requirements going forward to ensure that all such roles are appropriately staffed.

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3. Timbermill will ensure that all construction activities are pre-approved by the
environmental compliance monitors through the Work Authorization Procedure.

4. Timbermill or its designee will brief all subcontractors and employees during Site
Orientation regarding environmental compliance protocols, permit requirements, and the
work authorization procedures. No contractor will be permitted to conduct any
construction activity without first receiving this orientation.

5. Timbermill will delineate the permitted LOD by installing high visibility flagging at 25-
foot intervals.

6. For any area where clearing will occur, Timbermill will install a visual barrier such as
brightly colored string or tape prior to the beginning of the activity to delineate approved
areas of work.

7. Timbermill will install additional signage around the project describing how to identify the
LOD, and expressly prohibiting anyone from undertaking construction work outside the
LOD.

8. Timbermill will create placards, laminated cards, and/or other summary documents that
describe the LOD, how it may be identified, and the prohibition against constructing
outside the LOD. Timbermill will distribute these documents to contractors,
subcontractors, and employees.

9. Timbermill will conduct training of any new personnel and conduct periodic refresher
training on environmental compliance for all personnel.

4. Reasons Why a Civil Penalty Should Not Be Assessed.

NCDEQ requested “[r]easons why a civil penalty should not be assessed.” NOV at p. 3.
In response, Timbermill respectfully submits the following reasons.

First, Timbermill voluntarily self-reported each of the violations discussed in the NOV in
a timely manner, and subsequently fully cooperated with NCDEQ and the USACE in responding
to these self-reported violations. Timbermill will remain fully cooperative with all regulatory
agencies during this process.

Second, Timbermill voluntarily took immediate, swift action in response to each of these
issues. For example, Timbermill issued Stop Work Orders as soon as it discovered potential
violations. In response to the subcontractor’s unauthorized tree clearing between the access road
and the crane path, Timbermill terminated the subcontractor who committed this action and the

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Senior Project Manager from its construction contractor who was responsible for subcontractors.
Lastly, while NCDEQ’s March 13, 2024 NOV requests a plan of action to prevent future
violations, Timbermill submitted a proposed draft plan on March 1, 2024.

Third, these violations were inadvertent, rather than intentional. Specifically, some of the
unauthorized impacts occurred because of a discrepancy between IFC documents and permitted
documents. Construction contractors had no knowledge of this discrepancy. These construction
crews were following IFC designs, including the permitted LOD as reflected on those designs.

Fourth, these violations are minor in nature. As discussed during the in-person meetings
and demonstrated during the site inspection, the requested design changes that were incorporated
into the IFC design result in fewer impacts or no net change in impacts to aquatic resources within
the project. Similarly, the tree clearing that occurred between the crane path and access road is an
area that totals approximately 1,000 square feet, and had it been done on a commercial timber
operation site, would likely have been permissible. Timbermill proposes to revegetate this area so
that any impact will be temporary.

Fifth, Timbermill has taken these violations seriously and has implemented additional
measures, including employing four full-time compliance monitors on site. All construction
activity must obtain pre-approval pursuant to Timbermill’s Work Authorization Procedure. That
procedure requires that the environmental compliance monitors confirm that proposed work
complies with all permit conditions and requirements before the work is authorized to occur.

In summary, Timbermill voluntarily self-reported these issues, took immediate and
significant actions to ensure these issues did not become worse, removed responsible personnel
from the site even though these were inadvertent rather than intentional violations, and has
increased compliance procedures and resources on site. For these reasons, Timbermill respectfully
requests that no civil penalty be assessed for these self-reported violations.

***
Thank you for your consideration of this information. Please contact me if you have any
questions, suggestions, or would like additional information.

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Sincerely,

Hank Seltzer
Environmental Permitting Director
Timbermill Wind
Apex Clean Energy
120 Garrett Street, Suite 700
Charlottesville, VA 22902
[phone]
Email:
[e-mail]
Enclosures:

Exhibit A - Revised Sedimentation and Erosion Control Plan Sheets.
Exhibit B – Environmental Compliance Inspection Reports.
Exhibit C – Proposed Remediation and Compliance Work Plan.