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West Virginia Supreme Court Tosses Challenge to Proposed Brooke County Power Plant

COLLIERS — The West Virginia Supreme Court of Appeals has ruled in favor of a proposed natural gas power plant in Brooke County.

The state’s high court issued a unanimous memorandum decision Thursday in favor of Energy Solutions Consortium affirming a siting certificate for ESC Brooke County Power. The West Virginia Public Service Commission issued the siting certificate for the proposed plant on Feb. 20.

“We are pleased with the unanimous decision by the West Virginia Supreme Court to affirm the citing certificate of the ESC Brooke County Power project issued by the West Virginia Public Service Commission after a frivolous appeal,” Consortium President Drew Dorn said. “We are excited to clear another important hurdle to bring this project and the huge economic benefits it will deliver to West Virginia.”

The consortium contends the annual economic impact of the facility will total $440.5 million each year.

The court decision also involved the West Virginia Oil and Natural Gas Association and the West Virginia State Building and Construction Trades Council, which had intervened in support of the project.

This matter came before the state Supreme Court after Ohio Valley Jobs Alliance, Richard Goodman, Frances Olenick, Joseph Olenick, David Dami, Jamie Vanhorn and Jason Nuzum appealed the PSC order granting a siting permit to ESC Brooke County Power for construction and operation of a natural gas-powered wholesale electric generating facility in Brooke County.

In their memorandum, the five justices stated: “Petitioners allege the Commission should have required ESC Brooke to submit a hypothetical tax estimate as part of its application, and that the Commission otherwise erred in finding that the project did not offend the public interest, and that the project would have a substantial positive impact on the local and state economies. While we agree with Petitioners that the Commission should have required the hypothetical tax estimate, we affirm given the substantial and uncontroverted weight of the evidence in favor of granting the siting permit.”

The ruling was issued by Chief Justice Margaret Workman and Justices Elizabeth Walker, Paul Farrell (sitting by temporary assignment), Tim Armstead and Evan Jenkins.

The power plant is to be built on a 20-acre portion of the Cross Creek Wildlife Management Area in Brooke County. ESC Brooke plans to lease the property from the West Virginia Division of Natural Resources.

According to court documents, agreements provide for a minimum lease payment to the Brooke County Commission of approximately $19 million over a 30-year period for use of the property, and additional compensation of $1 million at the closing of the project’s financing.

The Supreme Court memorandum also stated: “ESC Brooke, the Brooke County Commission, the Brooke County Board of Education, the Sheriff of Brooke County and the Assessor of Brooke County entered into a PILOT (Payment In Lieu of Taxes) Agreement. The PILOT Agreement states that ESC Brooke is exempt from ad valorem property taxes for a period of 30 years, and instead will make payments in lieu of taxes to be distributed to the Brooke County Board of Education and the Brooke County Commission.

“The property, being owned by the WVDNR, does not produce any ad valorem tax revenue at present, but the project would generate a minimum of $7,331,751 over the 30-year term,” the document stated.

A spokesman for Orion Strategies, a public relations firm representing ESC Brooke County Power, said, “The facility will provide $1 million to Brooke County on the commencement of construction with yearly contributions during operation of $433,000 to the Brooke County Commission and $167,000 to the Brooke County Board of Education.”

According to company projections, the Brooke County Power facility will consume $177.5 million worth of natural gas each year.

During plant operation, the facility will engage up to 30 full-time and part-time employees. In addition to the jobs on site, the project can create 1,164 direct, indirect and induced jobs, officials project.

The facility construction period is expected to involve almost 3,795 job years of work.

“Additionally, during the construction period, the project will yield many indirect economic benefits to the local community including over $1.25 billion in impact,” the spokesman said.

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