KINGSPORT, Tenn. (WJHL) — A school faces the biggest fine Tennessee’s environmental regulator has assessed in Northeast Tennessee this decade for alleged ongoing violations that have damaged Kendrick Creek at the construction site for a new Tri-Cities Christian Academy.
Lakeway Christian Schools (LCS) and their contractor Scott Bradley have appealed the order, which levies more than $290,000 in total penalties.
The damage to the creek, which lies at the edge of a new school site along Fordtown Road near Tri-Cities Crossing, was first noted by TDEC staff during a May 25, 2022 site inspection. The most recent report from TDEC on the site, dated July 7, 2023 — which came after four notices of violation — notes that a silt fence near the creek “has been completely undermined,” forming a trench “that is allowing sediment to flow freely underneath.”
A July 28 order from the Tennessee Department of Environment and Conservation’s (TDEC) division of water resources fines LCS $194,250 for natural resource damages. That amount was for what it describes as severe impact to 200 feet of the creek and moderate impact to another 1,500 feet.
The order also assesses a $95,215.91 in civil penalty and $3,458.70 in additional damages.
TDEC has declined to comment on the case, citing pending litigation. Bradley emailed TDEC Sept. 14, stating his intention to appeal TDEC Commissioner David Salyers’ order. Three News Channel 11 emails to LCS’s director, another administrator and Bradley seeking comment have gone unanswered.
Joe Bidwell is a biologist at East Tennessee State University. He said the size of the penalties suggests a couple things: that the violations were very significant and that TDEC appears to be taking its mandate to protect the state’s waters seriously.
“I haven’t been to the site, but the fact that there has been a monetary fine levied indicates that there has been some significant impact,” Bidwell said. “And you know, the way to best enforce these environmental water quality regulations is to monetize it, because that gets people’s attention.”
He said Tennessee’s surface water streams are protected by various criteria that trace their roots to the federal Clean Water Act, passed in 1972.
Bidwell said the TDEC’s follow-through in this case “indicates that the state is taking sediment pollution seriously, which they should be because it is such a common threat to surface waters.”
A series of warnings
TDEC records show Bradley first submitted a standard Stormwater Pollution Prevention Plan for the school project in February 2021. That plan, covering 49 acres, said runoff from the site would drain to Kendrick Creek, but the creek “would not be impacted by the proposed development and will remain in its current condition after the construction of this project.”
An updated plan in April 2021 described silt fences and other erosion protection and sediment control measures (EPSCs) that “would be installed prior to any land disturbance.”
A little more than a year later, on May 25, a TDEC inspection found the construction had encroached on a protected stream buffer area. Additionally, the state’s order says, “the required sediment basins had not been installed, and many of the other EPSC measures on the Site were failing or otherwise needed maintenance or repair.”
ETSU’s Bidwell called that a key finding.
“Silt fences are great, but they have to be maintained,” he said. “You can’t just put them up and leave them because as they start to accumulate the silt which they’re keeping from going into the waterway, that has to be removed. If they get overloaded, they collapse and then you have no positive effect at all.”
In this case, just a month or so into the project, that May 25 visit also revealed “significant amounts of sediment had been discharged to the creek from the Site,” which staff documented with photos.
TDEC issued the first of four notices of violation May 31, and the next day TDEC, Sullivan County’s Director of Planning Ambre Torbett and Lakeway representatives gathered for a “compliance review meeting.” The failures were reiterated. Bradley told TDEC he had instructed Glass Machinery and Excavation, a subcontractor, “to cease construction activity.”
TDEC recommended numerous corrective actions during the June 1 meeting, but a June 28 follow-up inspection showed sediment basins weren’t installed and sediment accumulation had reduced the capacity of silt fences by more than 50%, “causing the discharge and deposition of settlement into the creek.”
Another inspection on Sept. 20, 2022 also found improperly functioning sediment basins and silt fencing “loaded beyond 50% capacity.”
“Staff also noted numerous releases of sediment into the buffer zones and the Creek and documented with photographs a release of insufficiently treated stormwater heavy enough to carry gravel into the Creek.”
Isn’t it just dirt?
Bidwell said sedimentation causes about 20% of water pollution in Tennessee. He said sediment particles made their way into the “interstitial spaces” between rocks where a “whole community of organisms” make their home.
“Small invertebrates, fish larvae, freshwater mussels … when it becomes clogged with sediment, there’s actually a term for it called embeddedness. That habitat is completely eliminated.”
Kendrick Creek’s designated uses include fish and wildlife habitat. While the critters that disappear due to oversedimentation aren’t highly visible, some of the other animals they support are.
“The organisms that live in those interstitial spaces feed the fish that the heron feeds on,” Bidwell said. And if sediment deposition goes on long enough it can directly impact some fish species. “It can irritate the gill tissue, so it can absolutely impact those organisms that are easier to see.”
Bidwell said he doesn’t think the Lakeway situation is an example of “everybody does it, we just got caught.”
“I think in many cases, the contractors are doing the right thing in terms of maintaining the silt fences, having sedimentation ponds and they’re following the right practice to try to avoid impacts,” he said.
Calculating the damage
TDEC’s order states that its investigation revealed “natural resource damages” (NRD) totaling $194,250 “for lost resource values at the Site.” The worst-impacted stretch of the creek was calculated to be severely impacted for a duration of five to ten years.
TDEC uses a formula with a base “per functional-foot” cost of $1,750. It then uses a multiplier depending on severity, which is 0.18 for severe impact and 0.05 for moderate impact. Those factors pegged the severe impact at $63,000 and the moderate impact of 1,500 feet of the creek at $131,250.
If Lakeway were to submit and implement a TDEC-approved stream restoration plan, those amounts could be lowered — 3% a year for each year the impact is determined to be shortened.
The order requires any removal of sediment from the creek through an approved restoration plan to “be conducted with only hand tools.”
Bidwell said often in cases like this one, “depending on the severity of the sedimentation, the best thing to do is to stop the input and then let natural process wash it out but … if there’s a significant amount of sediment that can be removed by hand, that’s obviously going to going to decrease the amount of time it takes for the system to recover.”
That stream restoration plan was due within 31 days of Lakeway receiving the order. So were initial payments of $19,043.18 toward the civil penalty and $20,588 toward the NRD fines.
That’s all on hold following a Sept. 14 from Bradley announcing the intention to appeal.
Appeals are conducted before an administrative judge as contested case hearings and are “legal proceedings in the nature of a trial,” the order says.