Developer faces environmental sanctions

By Scott Barker

A prominent East Tennessee developer cited last month for illegal strip mining at an upscale community he's building has amassed a record of environmental noncompliance that prompted state regulators to impose strict controls on construction at one of his developments in Meigs County.

Records show Tennessee's top environmental officer determined that Michael Ross and others involved in Maryville-based Rarity Communities Inc. repeatedly failed to control erosion at a trio of developments in Loudon and Roane counties.

Siltation is one of the leading causes of degraded water quality in the state, according to the Tennessee Department of Environment and Conservation.

In a pair of agreed orders, Ross and his companies didn't admit wrongdoing but accepted the state's punishment for violating the Tennessee Water Quality Act. Those punishments include more stringent controls at a new development in Meigs County and hefty fines if they don't follow the provisions of settlements.

"I think it's safe to say that was done to prevent similar problems at another site," TDEC spokeswoman Tisha Calabrese-Benton said.

One of the orders states that the Rarity companies "do not admit or agree to the factual allegations or the alleged violations of law" but decided to comply "to avoid the cost of protracted litigation."

Ross said Friday that his overall environmental record - including granting conservation easements and shoreline maintenance - is good. He observed that the golf course at Rarity Pointe has been designated as a sanctuary by Audubon International, which means its planning, construction and maintenance meet the organization's environmental standards.

Ross said any violations were unintentional.

"It's not like we're trying to do this on purpose," Ross said. "It's not our intention to have runoff or get silt in the waters of the state."

TDEC also is investigating water quality compliance at Rarity Mountain in Campbell County, where the U.S. Office of Surface Mining Reclamation and Enforcement uncovered an alleged wildcat coal mining operation in the midst of golf course construction. Ross said his company is working on a reclamation plan to submit to the federal surface mining office.

The Rarity Mountain probe comes on the heels of the state's regulatory wrangling over three other Rarity developments - Rarity Ridge and Rarity Oaks near Oak Ridge, and Rarity Pointe in Vonore.

"After a while, you establish a pattern of problems and issue an enforcement action." said Paul Schmierbach, who heads TDEC's Water Pollution Control Division in Knoxville.

The agreed orders cite Ross' Rarity Communities, affiliated companies Tellico Landing LLC and Oak Ridge Land Co. LLC, and Gary Consorto, an executive with the companies, as respondents.

At Rarity Ridge, a 1,200-acre development with several streams and wetlands bordering the Clinch River portion of Watts Bar Lake, the companies were cited four times for violating the Water Quality Act by either not installing or improperly maintaining storm water controls before Environment and Conservation Commissioner James Fyke issued an order in 2005 punishing the firms.

During appeals to the Water Quality Control Board, the state and Ross agreed to settle. The companies had to pay a fine of $27,875 up front, but that could have risen to $111,500 if developers failed to follow Fyke's order. TDEC also assessed Rarity $1,956.62 to cover TDEC expenses.

At Rarity Pointe, TDEC found Ross' development team polluted Tellico Lake, failed to install and maintain erosion controls, and operated without a storm water permit.

At Rarity Oaks, TDEC determined Ross' operation polluted East Fork Poplar Creek and Pinhook Branch, didn't obtain storm water or stream alteration permits before beginning work, failed to install and maintain sediment controls, and altered streams without permission.

As a result, TDEC took the extraordinary measure of requiring extra compliance measures at a Ross development that is not the subject of enforcement actions - Rarity Rivers in Meigs County.

"I'm not aware of any (development) in East Tennessee where we've done this," Schmierbach said.

In addition to requiring the obtaining of and compliance with necessary permits, TDEC is restricting the amount of land that can be disturbed at any one time to 50 acres or less, requiring that certified inspectors review work daily, insisting that storm water controls must meet more restrictive guidelines and that sewage be properly treated, dictating that licensed professionals conduct weekly inspections of storm water systems, and forcing any underbrush burning to conform to open burning regulations.

"We want to make sure we're doing it right," Ross said. "If we've got a problem we want to know about it before the state has to come in."

TDEC also assessed a $120,000 fine, though the firms have the option of undertaking environmental projects valued at $240,000 instead. Schmierbach said Ross has submitted proposals for environmental projects but no decision has been made about their acceptance.

Citing the ongoing review, Ross didn't provide specifics about the projects, which he described as involving "sustainable practices."

"These projects would be greater than $240,000," he said.

Failure to comply with the order, which was finalized May 21, could result in penalties ranging from $500 to $2,500 per day for each of eight possible violations.

Schmierbach said Ross and his companies have cooperated with TDEC but added that "cooperation and results are two different things."

The enforcement actions don't cover Rarity Enclave, a new Tellico Lake development Ross announced Thursday.