Sustained Outrage

Jim Justice

It wasn’t so long ago that West Virginia lawmakers were hearing a report from state regulators about the potentially dangerous conditions at various dams around our state.  The Daily Mail’s Zack Harold covered the legislative hearing and reported:

West Virginia’s watershed dams are old, getting older and need to be repaired, but no one knows how much that will cost, or even what kinds of repairs are needed.

Brian Farkas, executive director of the West Virginia Conservation Agency, said about 100 of the state’s 170 watershed dams do not meet current design standards, but the agency needs to have engineers review the structures to prioritize what should be repaired first and how much those repairs likely would cost.  But no matter how much the repairs cost, the agency likely would not be able to afford them.

While that story focused on publicly owned flood-control dams around West Virginia, the state also has quite an inventory of privately owned water-retaining structures that aren’t up to legally mandated standards and don’t have a “certificate of approval” — the dam control law’s term for permits — from the state Department of Environmental Protection. This is a problem that’s been around for a while, and that can keep DEP officials up at night when we get a big rain. Here’s the current list of the state’s most deficient dams, as published by the DEP dam safety office in the State Register about a year ago. You can see it’s not like WVDEP has been overly aggressive or in any big hurry to really pound on dam owners who have never complied with the law.

But every so often, dam safety officials seem to discover another dam out there that they didn’t really know about — one that was built without state approval, or built before the state passed its dam safety law following the deaths of 125 people when a coal-slurry dam on Buffalo Creek in Logan County collapsed in February 1972. That’s what happened a few years ago when WVDEP began investigating coal-ash dams after one such structure failed down in Tennessee. And in recent years, there was at least one other incident I’m aware of where WVDEP had trouble keeping track of the condition of a dam.

And that’s apparently what happened back in 2008, when the management at Glade Springs Resort obtained state approval for a new dam at Chatham Lake. A WVDEP dam safety inspector was visiting the site, to perform a required inspection during construction, and apparently noticed this other dam, the Mallard Lake Dam that didn’t have a certificate of approval and appeared to pose some danger to vehicles coming and going from the property, located as it was right along the main access road to Glade Springs.

What followed was a WVDEP order that required the resort owners to obtain a certificate of approval and also file required emergency response and maintenance plans for the Mallard Lake structure, and a series of letters back and forth. I’ve posted the order here, and the correspondence here, here, here and here. You can read it for yourself.

Things got more interesting — at least publicly — yesterday, when the Beckley paper ran two stories about the matter, based apparently almost entirely on a letter Glade Springs owner Jim Justice wrote to the owners of homes on the resort property.  One story was headlined Possible Glade dam order could cost $9.2 million and it started out like this:

According to a letter sent from Jim Justice to property owners at The Resort at Glade Springs, the West Virginia Department of Environmental Protection (WVDEP) will order that the roadway around Mallard Lake and its dam be raised approximately 40 feet, which Justice said would cause the entrance road to be closed for 24 months and cost the Property Owners Association $9.2 million.

The other story was headlined Justice takes stand for West Virginia and can most fairly be described as a rant against WVDEP by Jim Justice. For example:

As The Resort at Glade Springs owner takes his issues with the West Virginia Department of Environmental Protection to the people who live in the gated community, he says he wants to be clear on one thing.

“I have no issue whatsoever with money or whatever is going to have to take place to correct this situation,” Justice said.

“That’s not my issue at all. My issue is wrapped up in the fact that this type of behavior, whether it’s done to Jim Justice or whether it’s done to John Doe, this type of stuff is what continues to kill us. It just destroys our state. The common everyday guy is the victim.”

Justice said his fear is not about the road closure at Glade Springs, but the impact it may have on business owners living there.

“Who knows that there isn’t 10 prominent people living in Glade Springs that have businesses in West Virginia that say, ‘That’s it. I can’t take any more.’ Because they’re getting bombarded with the same kind of stuff.”

He said he fears they will move their businesses to surrounding states, like North Carolina, Virginia or Kentucky.

“Who’s the next person that’s going to leave? It’s really difficult.”

Jim Justice

The Beckley paper let Mr. Justice go on:

Our state’s targeting of successful people and ridiculous, absurd actions have driven away many good people and prohibits business and opportunity from coming to our state. Simply put, West Virginia is 50th in nearly everything. I’m convinced they don’t get it and it breaks my heart. I love our state and its people.

And on:

“Having an ulterior motive that harms good people is intolerable. West Virginians deserve so much better … Our own agencies are cannibalizing us.”

And on:

He said he loves his state and wants to see businesses and business owners thrive, but in this scenario he said, “I don’t have a choice. They’ve got the guns loaded at me.”

Now for the sake of getting the facts right, WVDEP has not mandated a particular solution to the safety concerns they see at the Mallard Lake Dam. The agency’s original order didn’t do that.  And their most recent response letter to the resort didn’t do that either. But WVDEP officials have made it clear that even Jim Justice has to comply with the state’s dam safety law.

In this instance, longtime WVDEP dam  safety chief Brian Long is looking at the main access road to a much-used resort, and telling the owner that it has to either 1) Raise the level of the embankment to it can’t be over-topped by heavy rains; or 2) Reinforce the structure so that if it is over-topped, the crest of the dam and the adjoining road won’t erode, either creating safety problems like sinkholes and gullies on the road or — potentially — causing the entire structure to fail. If Glade Springs chooses the second option, WVDEP wants the resort to also include specific provisions in its emergency response plan to ensure that, if the dam does over-top, no one will be able to drive on it at the time.

For WVDEP, this was all pretty simple stuff for the most part. Brian Long told me yesterday that the agency “routinely” issues these kinds of orders to try to require dam owners to fix safety problems. “We did nothing different at Mallard Lake,” he said. And, to emphasize the way WVDEP tries to work with dam owners, Brian noted again that his agency “doesn’t dictate” exactly how the safety problems should be remedied — that’s up to dam owners to decide what works best for them.

But except for walking me through the actions they’ve taken and the reasoning behind them, WVDEP officials like agency Secretary Randy Huffman have so far declined to really respond to the allegations made by Jim Justice that their agency is basically ruining West Virginia by running “prominent people” out of the state with all of these silly dam-safety regulations.

Mr. Justice and Glade Springs, though … well, when I called over there yesterday trying to talk to Mr. Justice or to someone from the resort management about the dam issue, I got transferred to Gov. Earl Ray Tomblin’s office. No, it wasn’t a mistake — the nice fellow answering the phone at Glade Springs told me he’d been instructed to forward all phone calls from anyone about the dam to the governor’s office.

Today, we’ve got more stories out there about this topic. Vicki Smith at The Associated Press wrote it up, leading her story this way:

Billionaire coal company and resort owner Jim Justice is in a war of words with the West Virginia Department of Environmental Protection over an illegally built dam at a gated golf course community, a 17-foot-high structure that regulators say presents a potentially deadly flooding hazard to hundreds of drivers.

Vicki also noted, citing a previous AP story about Justice’s financial problems:

Worth an estimated $1.7 billion, Justice ranks No. 292 on Forbes magazine’s list of wealthiest Americans. The magazine estimates that his personal wealth has grown by $500 million in the last year. But his Appalachian coal operations are struggling and business owners have filed at least nine lawsuits since late 2011 claiming they are not being paid for work at Justice mines. He says that’s emblematic of larger industry and economic struggles.

And the Beckley paper has two more stories today (see here and here), including one in which a local legislator — not surprisingly — comes to the defense of Jim Justice against those meddlesome DEP inspectors.

There’s no question that Jim Justice is a rich and powerful guy. And among many West Virginian’s, he is respected and practically idolized.  His effort to save The Greenbrier is frequently praised, as is his work on behalf of the new Boy Scout camp in Fayette County. His work as a longtime high school sports coach is a favorite topic of local sportswriters. In 2009, the Gazette named him West Virginian of the Year, with then-business writer Eric Eyre explaining:

Jim Justice wasn’t about to let a winter storm that dumped 2 feet of snow on Greenbrier County shut down the Lady Spartans’ basketball game against Spring Valley last week.

Justice hired a snow-removal contractor. The trucks plowed the Greenbrier East High School parking lot. A near sell-out crowd – there’s always a huge crowd at the Lady Spartans’ games – showed up. Justice – better known around Lewisburg as “Coach Justice” – guided the team to yet another victory, this one by a single point.

He’s used to winning. “I take a lot of pride in doing a job and doing it well,” Justice said. “I don’t want to sound immodest, but I can really make a deal. I can really shoot a shotgun, and I can really coach a basketball team.”

Indeed, Justice can coach basketball – he has a career coaching record of 765 wins and 152 losses in semi-pro, high school and AAU leagues over 30 years. He’s also an avid turkey hunter.

And he orchestrated one of the biggest business deals in West Virginia this year. He purchased The Greenbrier for $20.1 million in May, rescuing the luxury resort from bankruptcy. But there’s another side of Justice that he doesn’t talk much about: He’s always giving back to communities where he lives and works.

“He’s the most benevolent one-man stimulus package you’d ever meet,” said John Klemish, who returned to direct sales at The Greenbrier Sporting Club last summer at Justice’s request. “Jim Justice bought The Greenbrier to save people’s jobs. Who does that anymore? He’s the feel-good story of the year.”

For those reasons, Justice is also the Sunday Gazette-Mail’s 2009 West Virginian of the Year.

But we’ve also written about how, at the very time he was buying The Greenbrier, Justice owed quite a lot of money in unpaid safety fines to the U.S. Mine Safety and Health Administration. And we’ve written about the needless deaths of workers at some of his mining operations, in accidents that could have been prevented (see here and here).

So what to make of Justice’s “war of words” with the WVDEP’s dam safety office? Are agency inspectors out of control, and on the verge of running “prominent people” out of our state?

Well, let’s remember that the dam in question has been in place — without a state permit — for many years. Apparently, nobody from WVDEP who ever drove into Glade Springs for any other reason — to fish or to play golf or even attend a work-related conference (the West Virginia Coal Association and other trade groups sometimes meet there) — ever noticed until 2008 that there was a problem. Keep in mind, it’s not like Glade Springs was hiding this dam. They tout the lake on their website as a great spot for fishing and other recreation.

And the agency waited more than four years — until 2012 — to issue a formal order that the resort get the dam into compliance. Vicki explained in her story:

It’s unclear who built the dam or when, but Long said it’s more than 10 years old. The DEP discovered and inspected it in 2008, but Cosco said further action was delayed as the department’s resources were overwhelmed by other obligations.

Since 2010, the DEP has issued 31 orders — 27 of those requiring [other] dam owners to submit applications for certification, Cosco said. Sixteen were issued since January 2012.

The compliance deadline in DEP’s order — April 2012 — came and went more than a year ago, and Glade Springs has still not met the agency’s requirements.

Kathy Cosco, the DEP’s communications director, told the Beckley paper in this morning’s edition that the agency hopes to avoid taking Glade Springs to court:

Our first direction is to get the site into compliance with the law. But if they do not submit a proposal that meets the safety requirements, our only recourse is to take civil action.

And in its story highlighting the efforts of Sen. Mike Green, D-Raleigh, to come to Justice’s defense, the Beckley paper had this little line about how Gov. Tomblin and DEP Secretary Randy Huffman like to handle these sorts of things:

Green said Tomblin is “very much aware of what’s going on and is very much willing” to summon all parties in to hammer out a compromise.

“Randy is the same way,” Green said.

It should be interesting to see what happens next …