VL4 €€AND DELIVERY Ms.

November 17,20 1 7

VL4 €€AND DELIVERY Ms. Ingrid Ferrell Executive Secretary Public Service Commission of West Virginia 201 Brooks Street Charleston, West Virginia 25301

Re: Case No. 17-052 1 -E-CS ESC BROOKE COUNTY POWER I, LLC

Application for Siting Certificate to Authorize the Construction and Operation of a Wholesale Electric Generating Facility in Brooke County, West Virginia

Dear Ms. Ferrell:

Enclosed for filing in the above-referenced case on behalf of ESC Brooke County Power I, LLC is an original and twelve copies of "Initial Brief of ESC Brooke County Power I , LLC. "

Please do not hesitate to contact me if you have any questions regarding this filing.

Lee F. Feinberg (WV State Bar #1173)

LFF/ads: io24378 1

Enclosures cc: Certificate of Service

Spi lman Thomas & Battle, PLLC

West Virginia I North Carolina I Pennsylvania I Virginia I spiimanlaw.com 300 Kanawha Boulevard, East 1 PO Box 273 I Charleston, WV 25321-0273 I 304.340.3800 I F 304.340.3801

http://spiimanlaw.com

PUBLIC SERVICE COMMISSION OF WEST VIRGINIA

CHARLESTON

CASE NO. 17-0521-E-CS

ESC BROOKE COUNTY POWER I, LLC Application for a Siting Certificate to Authorize the Construction and Operation of a Wholesale Electric Generating Facility in Brooke County, West Virginia

INITIAL BRIEF OF ESC BROOKE COUNTY POWER I, LLC

Lee F. Feinberg (WV State Bar # 1173) Susan J. Riggs (WV State Bar ## 5246) Grant P.H. Shuman (WV State Bar ## 8856) 300 Kanawha Boulevard, East Charleston, WV 25301

304-340-380 1 (Facsimile) [email protected] [email protected] [email protected]

304-340-3 800

Counsel to ESC Brooke County Power I, LLC

Dated: November 17,20 17

mailto:[email protected]




CHARLESTON



TABLE OF CONTENTS

I. INTRODUCTION .............................................................................................................. 1

11. LEGAL ANALYSIS .......................................................................................................... 4

A. The Project satisfies the first part of West Virginia Code 9 24-2- llc(c) because the balancing of the interests of the public, the general interests of the state and local economy, and the interests of the applicant weighs overwhelmingly in favor of the Project ............................ 4

1. The applicable legal standard .................................................................... 4

2. The interest ofthe company ....................................................................... 6

3. The need for generating facilities in the state and region ....................... 9

a. Need for the Project in West Virginia ................................................. 9

b. Need for the Project in the Region .................................................... 12

4. The economic gain to the state and local economy ................................ 14

a. Increased Tax Revenue ....................................................................... 14

b. Economic Benefits Generated by Construction and Post- Construction Jobs .................................................................................... 16

. . c. Fuel Supply and Transmission.... ....................................................... 18

d. Additional Economic and Other Benefits ......................................... 21

5. (i) Community Residents’ Interests in Living Separate from the Project; (ii) The Project’s Negative Impacts be Minimally Disruptive to Existing Users; (iii) The Project’s Social and Environmental Impacts ........................................................ 22

a. Visibility of the Facility is minimal and limited, with only a small area of approximately 2,246 to 3,240 acres within the 20 mile study area having some view of the Facility ............................. 23

b. The Brooke County Noise Ordinance of 65 dB is not exceeded at any receptor during construction or operation and the Brooke County Power Noise Study demonstrates that the community will not be adversely impacted by noise from the Project ....................................................................................... 26

i. Brooke County Noise Ordinance .................................................. 26

ii. Siting. Rule 3.1.m.4 Noise Study ................................................... 28

iii. Pre-Construction Sound ............................................................... 28

iv. Construction Noise Levels ............................................................ 30

v. Operations ..................................................................................... 32

c. Brooke County Power’s consultations with U.S. Fish and Wildlife Service and West Virginia Division of Natural Resources reflect the Project will have no adverse impact on any rare, threatened or endangered species .......................................... 33

d. The West Virginia Division of Culture and History, State Historic Preservation Office has concluded the Project will have no effect on architectural o r archaeological resources ................ 33

e. The Project will have no adverse impact on surface and groundwater in the Project area and Brooke County Power will obtain any necessary permits related to water resources in the Project area .................................................................................... 37

f. Brooke County Power has submitted an air permit application to the state agency that holds jurisdiction to regulate air emissions: the West Virginia Department of Environmental Protection, Division of Air Quality .............................. 39

g. Brooke County Power will fully fund the construction of all water and sewer infrastructure improvements necessary to provide these services to the Project .................................................. 40

h. Any effect upon traffic occasioned by the Project will have a minor impact on the local transportation network during the construction phase, and virtually no impact on the local transportation network during the operational phase ......................... 41

i. Construction phase traffic generated by the Project will have a minor impact on the local transportation network ............................................................................................... 41

ii. Operational phase traffic generated by the Project will have virtually no impact on the local transportation network ............................................................................................... 43

iii. Brooke County Power agreed to implement Mr. Kirk’s recommendations to further improve traffic eonditions ............................................................................................ 43

B. The Project satisfies the second part of West Virginia Code 0 24-2- llc(c) because the PILOT Agreement and related leases do not offend the public interest and construction of the Facility will result in a substantial positive impact on the local economy and local employment .......................................................................................................... 44

1. The PILOT Agreement and related leases will provide substantial and positive economic impacts to Brooke County, and, therefore, do not offend the public interest ....................................................... 45

2. positive impact on the local economy and local employment .......................... 48

The construction of the Facility will result in a substantial

C. The Commission should approve the Memorandum Agreement with the Building Trades, inasmuch as it is good for the economy of the State, including Brooke County, together with the fact that the Commission had approved similar memorandum agreements in the past, subject to certain caveats ........................................................................... 49

D. The Commission’s final order should contain a ruling or a finding that Brooke County Power is not constructing a “transmission line” within the definition of Rule 2.3 of the Siting Rules or West Virginia Code 8 24-2-11a .................................................................................................... 51

E. The Commission should impose the conditions contained in the Partial Joint Stipulation because those conditions are (1) reasonable and in the public interest; and (2) consistent with the Commission’s past practice .......................................................................................................... 54

111. CONCLUSION ................................................................................................................ 61


CHARLESTON



INITIAL BRIEF OF ESC BROOKE COUNTY POWER I, LLC

ESC Brooke County Power I, LLC (“Brooke County Power”) submits this Initial Brief in

support of its Application for a Siting Certificate (the “Application”)’ to authorize the construction

and operation of a natural gas-fired wholesale electric generating facility of approximately 830

MW, associated interconnection facilities, and other necessary appurtenances (the “Facility” or the

“Project”) in Brooke County as more particularly described in the Application and documents

attached thereto.

I. INTRODUCTION

Brooke County Power respectfully submits that it has conclusively demonstrated that the

requested Siting Certificate should be granted to it pursuant to West Virginia Code $0 24-2-1(c)

and 24-2-1 IC. Pursuant to West Virginia Code 9 24-2-1 IC, the Public Service Commission of West

Virginia (the “Commission”) is required to appraise and balance the interests of the public, the

general interests of the State and local economy, and the interests of the Applicant, Brooke County

Brooke County Power introduced the Application as BCP Exhibit 1 at the hearing in this matter. The Application consists of several documents, including a document numbering 85 pages entitled “Application for a Siting Certificate for the ESC Brooke County Power I, LLC Proposed Generating Facility, Brooke County, WV, April 20 17.” To avoid confusion, Brooke County Power will refer to this document as the Application Appendix (“Application App’x”) hereinafter. There were also 27 tabs containing various documents attached to the Application Appendix. Where appropriate, Brooke County Power will provide the exhibit number and page number therein (e.g., Application App’x, Ex. 1, at p. 1).

Power. As part of the Commission's appraisal duty, Brooke County Power was required to submit

a substantial volume of information as part of its Application under the Rules Governinp Siting

Certificates for Exempt Wholesale Generators ("Siting Rules") for review. Brooke County Power

has submitted data, testimony, reports, and myriad other documents that overwhelmingly

demonstrate its compliance with the Siting Rules. Brooke County Power has also proven without

question that the Project meets the requirements of the Commission's balancing test.

Indeed, Brooke County Power has shown: (1) its strong interest, desire, overwhelming

qualifications, and ability to construct and operate the 830 MW electric generating facility,

interconnection facilities and necessary appurtenances; (2) the need for new electrical generating

plants in the region and the PJM market; (3) a substantial economic gain to the State and local

economies through new construction and permanent operational employment, local construction

and operational expenditures for fuel, supplies and services, and increased taxes and other benefits

to Brooke County and to West Virginia; (4) that social, environmental and other impacts of the

Facility on the surrounding communities are minimal to non-existent; (5 ) that the Payment in Lieu

of Taxes ("PILOT") Agreement and Lease Agreements for the Project do not offend the public

interest; and (6) that construction of the Facility will result in a substantial positive impact on the

local economy and local employment.

In addition to Brooke County Power's Application, testimony, and evidence, the Staff of

the Public Service Commission of West Virginia (the "Staff') has indicated through its testimony

that Brooke County Power has complied with the Siting Rules. Furthermore, all of the parties-

except for the Ohio Valley Jobs Alliance, Inc. ("OVJA"), and the Brooke County Local Residents

(the "Local Residents")-have entered into the Partial Joint Stipulation and Agreement for

Settlement ("Partial Joint Stipulation" or "Joint Exhibit 1"), agreeing and stipulating that the

2

Commission should issue a Siting Certificate to Brooke County Power, subject to various

conditions, including Brooke County Power, the Staff, the West Virginia State Building and

Construction Trades Council, AFL-CIO (“Building Trades”), the West Virginia Oil and Natural

Gas Association (“WVONGA”), and the West Virginia Department of Commerce (“Commerce”).

In other words, OVJA and the Local Residents are the only parties attempting to create any

negative perception of the Project.

But why? OVJA’s purpose to support its federal tax exempt status under Section 501(c)(4)

is ostensibly “to promote and protect good-paying jobs in West Virginia.” (OVJA’s Articles of

Incorporation, at 1).2 How does that tax exempt purpose square with OVJA’s endless litigation

concerning siting certificates and air permits? If, indeed, OVJA’s true purpose is to promote good-

paying jobs in the Ohio Valley, then OVJA has completely disregarded that purpose by opposing

the construction of a natural gas-fired power plant in Brooke County that will create numerous

good-paying jobs for individuals in the Ohio Valley. This is particularly true because OVJA

focused its litigation strategy in this case on issues that are wholly outside of its stated tax exempt

purpose. A federal tax exemption under Section 501(c)(4) is not a right, it is a privilege bestowed

upon those promoting social welfare in specific ways. Thus, OVJA’s reasons for intervening in

this case are entirely disingenuo~s.~

* This document is a public record, and, as such, the Commission may take judicial notice of it under Rule 201 of the West Virginia Rules of Evidence. It is attached to “ESC Brooke County Power I, LLC’s Response in Opposition to Protest, Petition to Intervene, and Request for Formal Hearing of Brooke County Residents Donna Paules, Timothy Cunningham, David Dami, Richard Goodman, Jason Numm, Jamie VanHorn, Frances Olenick, and Joseph Olenick, and the Ohio Valley Jobs Alliance, Inc.,” as Exhibit A, at 1.

OVJA witness and only director, James Russel Thomas, testified at the hearing that Murray Energy Corporation is paying OVJA’s legal expenses to fight the Brooke County Power Project. (October 18,2017 Hearing Transcript at 90). Hereinafter, Brooke County Power will refer to the hearing transcript fi-om October 17,2017 as “Oct. 17,2017 Hrg. Tr.” and the transcript from the hearing on October 18,2017 as “Oct. 18,2017 Hrg. Tr.” Brooke County Power has used the “corrected” transcript for the hearing on October 17,2017.

3

It is fair to inquire, therefore, whether any of OVJA’s actions as an intervenor in this case

have been appropriate for a 50 1 (c)(4) tax exempt corporation when those actions do not correspond

to the stated purpose of the 501 (c)(4) entity, and when in fact the sole director of that entity testified

under oath that (1) the only social welfare interest that it is seeking in the case is the impact to

hunting on the Cross Creek Wildlife Management Area (the “WMA”); and (2) its legal bills were

paid by Murray Energy Corporation.

Regardless, this case is not about the state of the coal industry, or even a referendum on

the viability of the same. This case is about whether Brooke County Power-as a prospective

exempt wholesale generator (“EWG”) under federal law-met its burden for the Commission to

issue a Siting Certificate to Brooke County Power. The balance of (1) the interests set forth in

West Virginia Code 8 24-2-1 IC; (2) the record presented in this case by and through Brooke

County Power’s filings, testimony and evidence; and (3) the lack of evidence presented by OVJA

and the Local Residents weighs strongly in favor of granting the Siting Certificate for which

Brooke County Power has applied. That is what this case is about, and Brooke County Power

more than carried its burden in this regard. With that, Brooke County Power will now demonstrate

why the Commission should grant Brooke County Power a Siting Certificate based on evidence

that is largely undisputed.

11. LEGAL ANALYSIS

A. The Proiect satisfies the first part of West Virginia Code 6 24-2-llc(c) because the balancing of the interests of the public, the general interests of the state and local economy, and the interests of the applicant weighs overwhelmingly in favor of the Proiect.

1. The applicable legal standard.

When deciding whether to issue a siting certificate, the Commission is statutorily required

to consider West Virginia Code 3 24-2-1 lc(c):

4

In deciding whether to issue, refuse to issue, or issue in part and refuse to issue in part a siting certificate, the commission shall appraise and balance the interests of the public, the general interests of the state and local economy, and the interests of the applicant. The commission may issue a siting certificate only if it determines that the terms and conditions of any public funding or any agreement relating to the abatement of property taxes do not offend the public interest, and the construction of the facility or material modification of the facility will result in a substantial positive impact on the local economy and local employment. The commission shall issue an order that includes appropriate findings of fact and conclusions of law that address each factor specified in this subsection. All material terms, conditions and limitations applicable to the construction and operation of the proposed facility or material modification of the facility shall be specifically set forth in the commission order.

W. Va. Code 0 24-2-1 lc(c).

The Commission has construed the foregoing as setting forth a two-part balancing test:

In Part One of the analysis, the Commission will perform its duty to appraise and balance: (a) an applicant’s interest to construct an electric wholesale generating facility; (b) the State’s and region’s need for new electrical generating plants; and (c) the economic gain to the State and the local economy, against: (i) community residents’ interest in living separate and apart from such a facility; (ii) a community’s interest that a facility’s negative impacts be as minimally disruptive to existing property uses as is reasonably possible; and (iii) the social and environmental impacts of the proposed facility on the local vicinity, the surrounding region, and the State.

The Commission performs Part Two of its analysis only if it determines in Part One that, taken as a whole, positive impacts relating to the various interests outweigh the negative impacts on the various interests. (See W.Va. Code 0 24-2-1 1 c(c)). In Part Two the Commission decides whether a project’s public funding, if any, and property tax abatement, if any, offends the public interest. (See W.Va. Code 4 24-2-1 lc(c)).

Longview Power, LLC, Case No 03-1 860-E-CSY at 114 (Comm’n Order Aug. 27,2004). See also

AES New Creek, LLC, Case No. 08-2105-E-CSY at 8-9 (Comm’n Order Sept. 30, 2009) (“a New Creek”); Pinnacle Wind Force, LLC, Case No. 09-0360-E-CSY at 9-10 (Comm’n Order Jan.

5

11 , 2010) (“Pinnacle Wind Force”); Moundsville Power, LLC, Case No. 14-1221-E-CSY at 8-9

(Comm’n Order Feb. 13, 20 15) (“Moundsville Power”); Seven Islands Environmental Solutions,

u, 16-0201-E-CS, at 6-7 (Comm’n Order July 8,2016) (“Seven Islands”); ESC Harrison County

Power, LLC, Case No. 1 7-0036-E-CSY at 10-1 1 (Comm’n Order Oct. 27,201 7) (“Harrison County

Power”).

As part of the second half of Part One of the analysis, the Commission considers issues

such as the project’s impact on viewshed, wildlife, ambient sound levels, and water resources. See

AES Laurel Mountain, LLC, Case No. 08-01 OS)-E-CS, at 9 (Comm’n Order Nov. 26,2008); &

New Creek, at 9; Pinnacle Wind Force, at 10; Moundsville Power, at 9; Seven Islands, at 6-7;

Harrison Countv Power, at 1 1.

2. The interest of the company.

No party to this case seriously challenged Brooke County Power’s interest in constructing

and operating the Project, and no party could reasonably do so. Brooke County Power has

vigorously prosecuted this case and the thoroughness of its filings and documents strongly evinces

its desire to construct and operate the Facility. In addition, Brooke County Power has worked with

numerous federal, state, and local officials to obtain or begin to obtain requisite permits, work out

arrangements to financially better the State and local economy, and generally bring a project of

this magnitude to fruition. That is not an easy or inexpensive feat, but Brooke County Power has

seen it through.

Further, Energy Solutions Consortium, LLC (“ESC”) has shown its interest in developing

the natural gas infrastructure and market in West Virginia in two prior cases concerning the siting

of EWGs for the purposes of constructing natural gas fired plants; namely, Moundsville Power

and Harrison County Power. In both prior cases, the Commission found that ESC demonstrated

6

the requisite showing of interest. Moundsville Power, at 9; Harrison County Power, at 12.

Nothing has changed in terms of ESC’s interest in and commitment to constructing EWG facilities

in West Virginia.

Furthermore, while West Virginia has an abundant supply of natural gas, it is not keeping

pace with surrounding states in terms of taking full economic advantage of this reso~rce .~ As ESC

President and Brooke County Power witness Mr. Andrew W. Dorn, IV, testified:

Q. Please discuss how the Project came to fruition.

A. . . . The generation fleet in PJM is being modernized to highly efficient natural gas combined cycle plants. Power producers in Pennsylvania, Ohio, Maryland, Virginia and Kentucky have multiple new natural gas plants completing construction in 2016 (4,177 MW) and many additional plants fully permitted, financed and breaking ground in 2017 (10,395 MW). Brooke County Power estimates the total cost of this out-of-state construction to be approximately $14.5 billion. While West Virginia has abundant natural gas from the Marcellus and Utica fields, there are no plants financed or in construction in West Virginia. West Virginia’s access to these natural gas reserves can provide the secure and economical fuel source these plants require. ESC conducted an analysis of sites in the Brooke County region and selected the Project site due to the constructability of the site with little impact to the site’s existing conditions, accessibility to readily available natural gas and ethane, and close proximity to an electric transmission interconnection.

(Direct Testimony of Andrew W. Dorn, IV (“AWD-D”), at 3-4). Thus, Brooke County Power is

ideally situated and motivated to begin to bring the benefits of the Marcellus and Utica shale boom

home to West Virginia.

This same sentiment was recently expressed by the Secretary of Commerce, Woody Thrasher. See Rusty Marks, West Virginia Behind the Curve in Developing Gas-Fired Power Plants, EXPONENT TELEGRAM, Sept. 19, 2017, available at www.theet.com/theetews/west-virginia-behind-the-cu~e-~-developing-gas-f~ed-power/~icle- 15cdfdf7-63f7-56f5-bl fa-b68a05e5 168e.html (“Thrasher said the disparity between West Virginia and neighboring states in relation to new electricity technology was “alarming,” and said the rising cost of energy in West Virginia is making it even harder to attract new business and industry to the state.”)

7

Finally, while no one has challenged the qualifications and capabilities of Brooke County

Power to bring this Project to fruition, Brooke County Power’s principals each have impressive

experience and credentials. Mr. Drew Dorn has a lengthy occupational and management history

in the energy and natural gas sectors. (Id. at 1-2; App’x A). And, indeed, Mr. Dorn’s engineering

career began in West Virginia. Likewise, Mr. Matthew J. Dorn, C.P.A., ESC’s Vice President of

Finance, has a considerable background in finance and accounting in the energy sector. (Direct

Testimony of Matthew J. Dorn (“MJD-D”), at 1-2; App’x A). Next, Mr. John P. Black, P.E., Vice

President of Development for ESC, manages the regulatory, technical, permitting, and contracting

components of the Project, and he brings more than 30 years of professional engineering and

complex project management to the Project. (Direct Testimony of John P. Black (“JPB-D”), at 4).

Finally, Drew Dorn summed up ESC’s expertise as follows:

Q. Please describe ESC’s corporate structure and its experience and expertise in project development.

A. Energy Solutions Consortium, LLC is a Delaware limited liability company. ESC directors, management, and employees have an extensive and diverse expertise in all aspects of the Project‘s development including power and natural gas markets, environmental, construction, and finance. In addition to ESC internal capabilities we have engaged industry leading firms for additional support in the areas of General and Contract Counsel, Owner’s Engineers, Risk Mitigation, Environmental Consultants, and Financial Advisors.

( A m - D , at 2-3). Thus, Brooke County Power has the necessary personnel with strong

backgrounds in the industry.

Accordingly, Brooke County Power has displayed its interest by assembling an

experienced group of people, and carefully choosing a siting location that will ultimately cement

ESC and West Virginia’s status in the natural gas wholesale generation market. Additionally,

8

Brooke County Power has expended several million dollars in due diligence and litigation costs to

bring this Project to life. Again, no party has claimed or could claim otherwise.

3. The need for generating facilities in the state and region.

Drew Dorn’s testimony throws the issue for energy expansion and diversification in the

State and the region into sharp relief

Q. Please discuss the need for the Project.

A. The PJM grid is experiencing significant generation retirements of 29,192 MW which started in 201 1 and are planned through 2020. 18,657 MW of the retired or retiring capacity is from West Virginia or an immediately bordering state (Kentucky, Ohio, Pennsylvania, Maryland, and Virginia). . . . There is a need to replace these generation retirements in the PJM grid, and as stated above, Ohio and Pennsylvania are two states where new natural gas plants are being constructed. West Virginia is an ideal location for replacement of these retiring plants due to its proximity to the retired or retiring capacity and its access to Marcellus and Utica natural gas supply.

(AWD-D, at 4). With that as a backdrop, Brooke County Power will address the statewide and

regional need for the Project.

a. Need for the Project in West Virginia.

In terms of the need for the project in West Virginia, perhaps no witness explained the

point more vividly than Commerce witness Mr. Kristopher N. Hopkins, the Executive Director of

the West Virginia Development Office (“WVDO”):

Q. Why is this project important to the WVDO?

A. In my experience, prosperity flows to where value is added to a raw material. To maximize economic opportunity, we must seek to add value to shale gas in this region, and not just ship it elsewhere or burn it. This project represents an opportunity take raw natural resources that are developed in our region and convert them into electricity right here in West Virginia. This activity maximizes value for the state, its citizens, and our communities instead of exporting it to other parts of the country or foreign markets.

9

Three of these projects have announced their desire to locate in the state over the past couple years. Each project represents a capital investment between $600 and 800 million. That level of investment is meaningful and we would love to see more. In addition to the upfront capital, the facilities represent significant economic value to the state in the form of construction jobs, permanent jobs, and the payment of payroll and property taxes to Brooke County and the state.

Finally, we are concerned that West Virginia is not realizing its full potential in this space. Because our region sits on one of the largest natural gas fields in the world, there is a lot of activity to build out infrastructure to develop that resource properly. However, the clear majority of natural gas power generation projects are being sited in neighboring states and not West Virginia. The WVDO wants to win these investments and help the state in the process because each project that decides to locate in another state represents a lost opportunity for West Virginia residents and businesses.

(Direct Testimony of Kristopher N. Hopkins (“KNH-D”), at 4). Based on Mr. Hopkins’ testimony,

projects like Brooke County Power are not only needed, but, rather, imperative to bring

investments into this State in order to develop infrastructure in West Virginia to make use of its

abundant supplies of natural gas. Otherwise, as Mr. Hopkins points out, projects will continue to

bypass West Virginia in favor of surrounding states.

The proposed Brooke County Power Facility will provide clean, low-cost and reliable

electricity needed to help balance the grid and offset the effect of coal plant closings in the area.

(Application App’x, at 15). Since 2012, 2,641 MW of coal fired power plants in West Virginia

have shut down including AEP’s Kammer, Kanawha River, and Philip Sporn plants, FirstEnergy’s

Albright, Rivesville, and Willow Island plants, and Dominion’s North Branch plant. (m. The

decisions to close these plants were made independently and well in advance of any natural gas

power plant developments being proposed in West Virginia. (Id). The closures are mainly due to

the relative uncompetitive nature of these plants in the broader PJM generation landscape,

10

primarily related to the age of the plants and the market shift to lower cost energy production.

(Id.). While unfortunate, these closures provide capacity in the grid, a need to meet regional

demand, and a well-trained local work force for the future operation of the Facility. (Id.). The

Facility will help support the local electric load balancing through its new generation and Brooke

County Power will fund significant capital upgrades to existing infrastructure, as required through

the PJM interconnection process. (Id.).

West Virginia currently has 15,050 MW of electric generating capacity, consisting of

primarily operating units with a weighted average age of 40 years. (Id.). The current resources are

predominately coal (85%) with the remainder being simple cycle natural gas peaking plants (8%),

wind (4%) and hydro (3%). (Id.; see also Table 3.1 .b. 1 (l), Existing Power Plants in West Virginia,

Application App’x, at 17 (summarizing the existing operating capacity in West Virginia) (Source:

SNL)). The proposed plant would represent approximately 5% of the State’s generation capacity.

(Application App’x, at 15).

The existing natural gas plants in West Virginia are simple cycle natural gas peaking plants

with heat rates in excess of 10,500 BtdkWh, and only dispatch in high power price environments.

Brooke County Power will help diversify West Virginia’s generation fleet and will provide reliable

power based on a highly efficient heat rate of approximately 6,600 BtukWh. (Id). This heat rate

would be substantially better than reported heat rates of other generation assets in West Virginia

and is very competitive in the broader PJM market as well. (Id.). This competitive heat rate and

access to an abundance of economically priced natural gas will allow Brooke County Power to be

economically dispatched at a high capacity factor by PJM. (Id. at 15-16). In turn Brooke County

Power will also be a large demand source for natural gas which will help support the natural gas

industry within the State. (Id. at 16).

11

Although Brooke County Power will likely be economically dispatched as a baseload plant

by PJM it will have robust operational flexibility. (Id,). Brooke County Power will be capable of

hot starts in less than 30 minutes with a 110 MW per minute ramp rate. (Id,). The plant will be

capable of achieving a turndown to 15% minimum load. (Id.). This operational flexibility can be

called on by the PJM grid as needed to balance intermittent output of renewables or variations in

electricity supply or demand on the grid. (Id.).

In essence, therefore, the Project is needed to (1) offset the closure of older coal fired plants

in West Virginia; (2) diversify West Virginia’s energy portfolio; and (3) balance the output of

renewable energy sources or other variations in supply or demand in the grid. As discussed further

below, the policy of the Commission is for West Virginia to participate in the electric grid system.

The Project will enable West Virginia to do so more robustly.

b. Need for the Project in the Region.

The PJM grid is experiencing significant planned and announced generation retirements of

29,192 MW, which started in 201 1 and are planned through 2020. (Application App’x, at 17).

Approximately 74% of these retirements are from coal units (2 1,257 MW), with 64% of the retired

capacity (1 8,682 MW) from West Virginia or an immediately bordering state (KY, OH, PA, MD,

VA). (a at 18; see also Table 3.1.b.l (2), Retirement by Fuel Type: 2011-2020, Application

App’x, at 18 (summarizing the retirements in West Virginia and the bordering states) (Source:

Monitoring Analytics, 2016 Quarterly State of the Market Report for PJM: January through

September)).

Power producers in states immediately surrounding West Virginia have reacted quickly to

these potential and announced retirements by developing new combined cycle gas plant

construction with great success. (Id). Power producers in states surrounding West Virginia have

12

multiple new natural gas plants completing construction in 20 16 (4,177 MW) and many additional

plants fully permitted, financed and breaking ground in 2017 (10,395 MW). (Id.). These plants

total 14,572 MW of new gas plant construction in Pennsylvania, Ohio, Maryland, Virginia and

Kentucky (Id.; see also Table 3.1 .b. 1 (3), Natural Gas Plants under Construction, Application

App’x, at 20 (Source: SNL)). Brooke County Power estimates the total cost of this out-of-state

construction to be approximately $14.5 billion. (Application App’x, at 18). West Virginia has no

plants financed or in construction. (Id.).

The new power plants proposed in adjacent states will attract additional jobs and industrial

developments to those states to utilize the reliable power and associated natural gas infrastructure

created to service the new plants. (Application App’x at 19). Brooke County Power will provide

a similar incentive in West Virginia, while encouraging additional natural gas exploration locally,

(Id.). There is an abundance of natural gas being extracted from West Virginia and the surrounding

gas-producing region. The West Virginia processing industry and surrounding larger regional

industry produces an abundance of pipeline quality natural gas and ethane. (Id.). These systems

are all interconnected and the quantity of ethane being produced is far in excess of local demand

and is transported to the Gulf Coast or exported to Canada or Europe for additional processing,

often at a cost to the producers. (Id.). The proposed Brooke County Power Facility will have the

ability to use a blend of raw gas, pipeline quality natural gas and ethane. (Id.). This blend is

unique in the area and supports local production, and consumes an under-utilized by-product of

processing local wet gas. (Id).

In conclusion, as the Commission has stated before:

West Virginia is part of a regional integrated electricity grid. Beech Ridge, Case No. 05-1590-E-CSY Commission Order Aug. 28,2006, at 76 (Concl. of Law 14: “[Ilt is not in the public interest for this Commission to isolate West Virginia from the region. The power

13

grid is interconnected, and to safeguard the availability of productive, well maintained resources to our State’s residents, West Virginia must participate in the interconnected electric system.”). - See, Pinnacle Wind Force, LLC, Case No. 09-0360-E-CS, Commission Order Jan. 11, 2010, at 5 1 (Concl. of Law 9), and Beech Ridge Energy I1 LLC, Case No. 12-1 196-E-CS, Commission Order June 19,2013, at 42 (Concl. of Law 9).

Harrison County Power, at 14. That conclusion remains as appropriate here as it has in prior cases.

A diversified mix of energy solutions benefits not only the State of West Virginia but the grid as

a whole. Thus, there is need for this Project in both West Virginia and the region.

4. The economic gain to the state and local economy

The Project will provide economic gain to the state and local economy in several different

ways.

a. Increased Tax Revenue

The Project will create significant local and State tax benefits, during construction and

operation, both directly and indirectly, as follows:

Property TadPayments in Lieu of Taxes (PILOT) - the PILOT and the

related lease payments will total at least $27,331,751 million over the 30 year

life of the Project. This is significantly more than the approximately $0 of

annual ad valorem tax payments generated by the site c~rrently.~ (MJD-D, at

10).

Sales and Use Tax - Although the Project will benefit from reimbursable sales

and use tax during the construction period under West Virginia Code $1 1 - 15-

9(b)(2) for all direct purchases related to the production of power, indirect

purchases related to administrative buildings, etc. will be subject to sales and

Please note that Brooke County Power addresses the PILOT Agreement and related leases in greater detail below.

14

use tax. Brooke County Power estimates this to be approximately $500,000 of

sales tax revenue to the State during construction. During operations, the Project

will be subject to sales and use tax on a portion of the purchase of various

consumable items, administrative expenditures and maintenance and repairs

purchases totaling $6 million annually, potentially generating up to $360,000

annually of sales and use tax revenue. Indirectly the Project will additionally

generate significant sales and use tax revenues through indirect and induced

impacts during the construction and operational life of the Project. (Id, at 10-

11).

0 Corporate Income Taxes - Brooke County Power estimates that the Project

will generate significant corporate income taxes during the initial five years of

operation and notes that amount will likely increase significantly as the Project's

depreciable basis decreases and the debt burden decreases, providing more

income subject to taxation. (Id. at 11).

Payroll taxes and Personal Income Taxes - Dr. Tom S. Witt has estimated

the Project will have $98.7 million of direct payroll, $1 18 million of indirect

payroll impacts and $46.5 million of induced payroll impacts, in the State

during the construction period. This will generate approximately $1 0.6 million

to $14.4 million during the construction period in personal income taxes.

During the operation phase, it is estimated that the Project will have $3 million

per year of direct payroll and $57.6 million indirect payroll impacts and $12.7

million of induced payroll impacts. This will generate approximately $2.9

million to $3.9 million per year in personal income taxes annually during the

0

15

30 year operational life of the Project. Additionally, the Project will generate

significant contributions to the State Unemployment Insurance Fund during

these periods. (Id.).

In terms of taxes alone, the Project represents a very substantial increase that will inure to the

benefit of the State and local economies.

b. Economic Benefits Generated by Construction and Post-Construction Jobs

BCP witness Dr. Tom S. Witt prepared a study entitled “The Economic Impact of ESC

Brooke County Power, I, LLC on the West Virginia Economy” (hereinafter the “Witt Report,”

Application App’x, Ex. 22). Dr. Witt utilized the IMPLAN@ input-output modelling system.

(Direct Testimony of Dr. Tom S. Witt (“TSW-D”), at 2). Utilizing data from West Virginia along

with the IMPLAN@ software, Dr. Witt estimated the “direct, indirect, induced and total economic

impacts of the construction and operation of Brooke County Power’s plant on the West Virginia

economy.” (Id.). It should be noted that the IMPLAP software is a nationally recognized

software and data system, and Dr. Witt-among others-has presented findings based on the

IMPLAN* software system to the Commission many times in the past. ( I I at 2-3; Oct. 17,2017

Hrg. Tr., at 85-86). There was nothing unusual about his approach in this case, except that Dr.

Witt had more detail on specific expenditures than he had in some other cases. (Oct. 17,201 7 Hrg.

Tr., at 85-86). That is so because Dr. Witt worked diligently and collaboratively with ESC’s Mr.

Matt Dorn to generate the inputs, and the two were better able to determine the “percent” of funds

that might be expended in other states. (a at 87). As discussed below, the Witt Report

demonstrates that the Project will have a substantially positive effect on the State and local

economies.

16

A summary of Dr. Witt’s findings follow:

0 Total project construction costs (including financing charges and fees) over the construction phase are estimated at $884.1 million (2016 dollars) with 45 percent of construction costs provided by West Virginia workers and firms.

0 Construction labor will be managed under an approved agreement with local building trades (union) and will involve 894 job-years (full- and part-time), averaging over 400 annually over the construction phase.

0 The plant will use $177.5 million (2016 dollars) annually of natural gas sourced through long-term fuel agreements. A third party will construct gas interconnections at an additional cost of $55 million (2016 dollars).

0 The economic impacts associated with project construction over the three years are estimated to result in 3,795 job years, $263.2 million in employee compensation, [$33 1 .016 million in value added, and $1,250 million in output (2016 dollars).

0 The economic impacts associated with the first full-year of operation are estimated to result in 1 , 164 full- and part-time jobs (including 30 at the plant), $73.3 million in employee compensation, $112.7 million in value added, and $440.5 million in output (20 16 dollar^).^

0 The construction and operation of Brooke County Power will have a significant economic impact on the West Virginia economy. The plant will generate additional value added from the natural gas being produced in West Virginia. The resulting electric power generation will partially replace coal-fired generation plants being retired within the state and help assure the reliability of the transmission grid.

0 Brooke County Power’s agreement with the Brooke County Commission and the Brooke County Board of Education will result in a payment in lieu of taxes (PILOT) of $7.3 million and lease payments of $20 million over a 30-year period, including an upfront payment of $1,000,000. These payments are dramatically higher than current taxes levied on the property.

This figure was corrected by Dr. Witt at the hearing. This is the proper amount. (Oct. 17,2017 Hrg. Tr., at 62-63). ’ As WVONGA’s witness Ms. Blankenship testified, the average annual salary of workers in the natural gas industry is $52,945. (Direct Testimony of Anne Blankenship (“ACB-D’)), at 4).

17

(Application App’x, Ex. 22, at 1). These numbers are dramatic, to say the least. And while the

IMPLAN@ software may not be able to state with specificity how many construction or operations

jobs will go to West Virginians, Building Trades witness Mr. Steve White has testified that it

would be a majority of construction jobs, and estimated that the number would be approximately

75%. (Oct. 18,2017 Hrg. Tr., at 83-84). Furthermore, Mr. Black testified that it is Brooke County

Power’s intent to hire as many West Virginians for operations as possible. (Id. at 48). Finally, in

its Memorandum Agreement with the Building Trades, Brooke County Power made its preference

for local workers clear. (See OVJA-LR 79).

In sum, the Project is of great economic importance to the State, including local economies.

Indeed, Dr. Witt testified that:

Q. [By Mr. Shuman] With that being said --- this is my last question . . . . [I]n your professional judgment will there still be substantial positive impacts to local community and local employment?

A. [Dr. Witt] I think there will be positive impacts in terms of the regional and state economy fund, the construction of this manufacturing plant.

(Oct. 17, 2017 Hrg. Tr., at 90). Based on the record, there is very little doubt that Dr. Witt’s

testimony is accurate.

c. Fuel Supply and Transmission

Readily available fuel supply will allow the Facility to function as a base load, full capacity,

generating plant enabling it to compete effectively with the many plants in Ohio and Pennsylvania

in the PJM grid. The Facility will use approximately $177.5 million annually of natural gas and

ethane available in the surrounding area with redundant supply sources and transportation options.

(Application App’x, at 6).

18

The Facility will receive natural gas and ethane fuels from dedicated pipelines constructed

and operated by third parties under contract to Brooke County Power. (Application App'x, at 8).

Brooke County Power continues to evaluate three options for natural gas delivery including local

wellhead production, a connection to Mountaineer Gas and a connection to an interstate pipeline

and many supply options. (AWD-D, at 5-6; Oct. 17, 2017 Hrg. Tr., at 42-43), The Facility can

also operate on a blended he1 of natural gas and ethane and is securing a dedicated ethane supply

and delivery from ATEX Purity Pipeline, about two miles from the plant site. (AWD-D, at 7).

The ability to burn ethane is an economic advantage to Brooke County Power and also to

local producers which have to ship excess ethane to the chemical plants in the South, or cracker

markets in Canada or overseas. Thus, when ethane supply gets out of balance in the Appalachian

Basin, the Brooke County Power plant will provide a valuable delivery option for local producers.

As Drew Dorn testified:

I think that that's a fantastic advantage as well on the producers in the market area because really the --- the dilemma in the northeast here is --- and most of the ethane demand in the ethyl chemical market.

And you're taking that gas all the way down to Mount Bellevue to be able to utilize that or generally some's going to Ontario for the steam cracker market there or some market in Pennsylvania to go overseas to European crackers.

And really when the markets get out of balance in the basins or they need in essence a place to put that ethane because you can't put too much of it in the natural gas pipelines or it'll start blowing up water heaters and other things. So we're very much outlet at times that there's operational issues in the basic [basin] or that it becomes too expensive when somebody has a short term ethane balance to move it all the way down to Mount Bellevue.

(Oct. 17,2017 Hrg. Tr., at 57-58).

19

Although the most likely gas supply scenario in the early stages of the Facility's existence

may be an interstate pipeline lateral traversing from Pennsylvania to the Project (Rebuttal

Testimony of Andrew W. Dorn, IV ("AWD-R'), at 2) the goal for Brooke County Power is

delivery from the dry Utica formation in Brooke County including the well pad immediately

adjacent to the plant and other nearby Brooke County locations:

Q-

A.

Q.

A.

Q.

A.

Q.

A.

Q.

A.

[By Mr. Feinberg] . . . If I said to you where would you like the gas for this plant to come from as soon as possible what would your answer be?

[Andrew W. Dorn, IV] The dry Utica right on top of us in Brooke County.

Okay. Is that the well pad next door?

Yes.

Is it conceivable that that well pad drilled by however many horizontal drillings there would be could serve the entire plant?

For a period of time, yes.

* * *

Okay. Do they have others in the area --- of the area of the project in Brooke County?

They do.

Okay. I'm assuming there are other --- the other well pads we saw at the site visit and they're shown on various maps?

Yes, there's a number of them.

(Oct. 17,2017 Hrg. Tr., at 49-50).

Brooke County Power is confident that Southwestern Energy, the entity which owns the

immediately adjacent well pad and other local wells, will drill the dry Utica. (a at 50).

20

Construction and operation of the Brooke County Power Facility will undoubtedly incentivize

other local Brooke County producers to want to drill wells to serve the Facility. (AWD-D, at 6).

The primary purpose of the interstate connection is to be able to secure the financing for

the plant which requires a redundant reliable source of delivery in order to backstop the plant for

any volume fluctuations.

Q. [By Mr. Feinberg] In the meantime could you finance the plant just on the basis of the expectation of the well pad next door?

A. [Andrew W. Dorn, IV] No, we could not.

Q. And where does that lead you to?

A. We need to have access to the secure, reliable and economically competitive gas. I believe it was pointed out to be able to also balance the plant for volume fluctuations. So you need that back stop from various liquid point to make the --- the finance market comfortable. Hence we need access to large volumes of gas under the interstate pipeline.

(Oct. 17,2017 Hrg. Tr., at 51).

Although the gas supply to the plant has not yet been finalized, Brooke County Power

continues to review and negotiate supply and transmission alternatives and the Conditions set forth

in the Partial Joint Stipulation include, among other fuel supply and transmission requirements,

contracts for fuel supply, for installation and construction of delivery points, and for construction

and operation of the third party delivery pipeline. (Id. at 56; see also Conditions 5 and 6 of the

Partial Joint Stipulation).

d. Additional Economic and Other Benefits

While taxes and jobs are always the prime movers in an economic analysis, it is important

to note that the Project provides other benefits. As Commerce witness Director Stephen McDaniel

testified, because the area is a WMA overseen by the United States Fish and Wildlife Service

21

("USFWS"), if an acre is disturbed on the property, the State must mitigate it with property of like

kind. (Oct. 17, 2017 Hrg. Tr., at 238). In this case, the Project will involve construction use of

101 acres; however, the State negotiated a million dollars in mitigation for 303 acres, or three times

what is required. (Id. at 239). Second, the construction of the Project in this location will avoid

the necessity of 4.7 miles of right-of-way for a transmission line which would have been sited

through nearby and adjoining neighborhoods. (Id. at 239-40). Finally, hunting and fishing will

still be permitted in the WMA, except that no fireanns may be used within the 101 acres including

and surrounding the 20 acres leased by Brooke County Power for the Facility. (See BCP-4, at 7 6 ;

-- see also Oct. 18, 2017 Hrg. Tr., at 74; 89-90).' Therefore, for the most part, the character of the

property will remain the same.

In sum, the economic gain to the State and local economy is substantial, varied, and, simply

put, a good deal. Based on the record in this case, it is virtually impossible to assert otherwise

credibly. Consequently, the next step is to balance Brooke County Power's interest in constructing

the Facility, the need for generation, and the enormous economic boon to the State and the region

from the Project against the interests of the community's residents.

5. (i) Community Residents' Interest in Living Separate from the Project; (ii) The Project's Negative Impacts be Minimally Disruptive to Existing Users; (iii) The Project's Social and Environmental Impacts.

OVJA, on behalf of its so-called "members" and the Local Residents, alleged "concerns"

about the Project relating to view, noise, environmental impact, traffic, and provision of water and

sewer services. OVJA and the Local Residents did not develop these allegations through the

evidence they offered, and in fact did not cross-examine any witness on most of these topics. In

* Interestingly, Mr. Thomas stated that hunting rights were the only "social welfare" issue concerning OVJA at the hearing, yet he was unaware of the fact that hunting would still be permitted on all but 101 acres of the W A . (Oct. 18,2017 Hrg. Tr., at 89-90).

22

fact, the only “concern” expressed at hearing by OVJA consisted of Mr. Thomas’ mistaken

understanding of future hunting rights in the area, as stated in footnote 8, supra. While OVJA and

the Local Residents did not offer proof through testimony or at hearing that there will be any

negative impact on the community due to these issues, in order to address the stated concerns,

Brooke County Power provides the following analysis and demonstration that the Project will not

negatively impact the community residents.

a. Visibility of the Facility is minimal and limited, with only a small area of approximately 2,246 to 3,240 acres within the 20 mile study area having some view of the Facility.

The Thrasher Group, Inc. (“Thrasher”) completed a “Visual Analysis and Geospatial

Rendering Report” (“Visual Analysis”) to identify and evaluate the potential visual effects

associated with the components of the Brooke County Power Facility, and to address the

requirements of the Siting Rules. (Application App’x, Ex. 17).

The Visual Analysis calculated visibility of the Facility using both bare earth and mature

cover elevations. (& at 5). Bare earth is representative of the base elevation of the existing ground.

To create a more accurate representation of the existing conditions and visibility of the site, the

mature cover elevations were also used in visibility analysis and account for existing vegetation at

40’ in height on top of the bare earth elevations. (& at 4). In addition to land cover, elevation

differences (between valley and ridge) and the location of the Project area in relation to the

surrounding ridgetops are additional limiting factors of visibility of the Facility. (Id). The existing

vegetation was verified in the field. (Direct Testimony of Matthew Fluharty (“MF-D”), at 4).

Brooke County Power’s witness Mr. Matthew Fluharty identified the seven rendering

locations as (1) a residential property off of Eldersville Road approximately 0.05 miles south of

the intersection of Pine Lane and Eldersville Road, approximately 2,600 feet northeast from the

23

Facility; (2) a location along Pine Lane approximately 350 feet north of the intersection of Pine

Lane and Eldersville Road, representative of the small residential community located in the area,

approximately 2,850 feet north from the Facility; (3) the intersection of Tent Church Road and

Eldersville Road, representative of the residences along Eldersville Road in this area,

approximately 2,760 feet northwest from the Facility; (4) within a small community of residential

properties situated on both sides of Eldersville Road approximately 3,000 feet west of the

intersection of Eldersville Road and Tent Church Road, approximately 5,000 feet northwest from

the Facility; ( 5 ) a residence located along a small private lane along Tent Church Road

approximately 0.75 miles south of the intersection of Tent Church Road and Eldersville Road,

representative of the small group of residences located along the small private drive, approximately

3,790 feet west from the Facility; (6) a residence along Tent Church Road approximately 700 feet

south of the intersection of Tent Church Road and Eldersville Road, representative of the

residences along Tent Church Road in this area, approximately 2,150 feet northwest from the

Facility; and (7) a location near a residence along Quinn Lane east of the intersection of Tent

Church Road and Quinn Lane, approximately 1,250 feet southwest from the Facility and which is

one of the closest residences to the Facility. (MF-D, at 5-6).

The Visual Analysis concluded-exclusive of Ohio and Pennsylvania acreage within the

20-mile Study Area-the area within West Virginia that would have some visibility of some part

of the Project would range from 1.0% (Mature Cover) to 2.0% (Bare Earth) of the 165,897 acre

study area, which is a small area of approximately 2,246 to 3,240 acres, respectively. (Application

App'x, Ex. 17, at 5, 8). While the Facility is located on an elevated area, much of the immediate

surrounding area is wooded with significant elevation changes which reduces the potential

visibility of the Facility. (Id. at 8).

24

The rendering locations, representative of various areas around the Project, have either

obscured views or virtually no views of the Facility. The southeast to northwest running ridgeline

north of the Facility along with mature forested areas throughout the surrounding area obscure the

majority of the Facility from Rendering Locations #1, #2, #3 and #6. (Id. at 9). Rendering

Location #4 has no view of the Facility due to an adjacent ridgeline running southwest to northwest

that is approximately 50 feet higher in elevation than the rendering location. (Id.). Rendering

Locations #5 and #7 are the closest locations to the Facility and will have potential for visibility

of the Facility especially in the winter months; however the visibility will be limited to portions of

the stacks and of the air cooled condenser. (Id.; MF-D, at 7). Overall the cumulative visibility

area is minimal and limited, with the existing topography and mature vegetation generally

obscuring the Facility from view except in a few locations where portions of the stacks and the air

cooled condenser will be visible for at least part of the year. (MF-D, at 7). There is a small

cemetery approximately 2,200 feet northwest of the Facility that will have an obstructed view of

the Facility through the trees. (Id. at 6).

The Facility will not be visible by the larger population centers of Chester, Weirton,

Hooverson Heights, Wellsburg, or Wheeling. (Application App'x, Ex. 17, at 8). There are no

State designated parks, national wildlife preserves, State refuges, national landmarks, national

parks, national recreation areas, scenic rivers, or scenic highways that will have visibility of the

Facility. (Id. at 6). Although the Facility is located within the WMA, it is within an area that had

been surface mined for coal and that is occupied by other industrial developments. (Id.; MF-D, at

7-8). There are no historic architecture points, cemeteries, or National Register of Historic Places

points within the Project site. There are two National Register of Historic Places listings within

25

the five mile radius of the proposed Project, however, neither place will have visibility of the

Facility. (Id. at 6).

No party proffered any evidence that challenged or refuted the findings and conclusions

set forth in the Visual Analysis. Additionally, no party cross-examined any Brooke County Power

witness on the Visual Analysis’ methods or its conclusions.

b. The Brooke County Noise Ordinance of 65 dB is not exceeded at any receptor during construction or operation and the Brooke County Power Noise Study demonstrates that the community will not be adversely impacted by noise from the Project.

Numerous factors affect sound levels from any electric generation project including the

type of generation equipment, general layout arrangement, building design, topography, weather,

ground cover, distance, leaf and foliage cover, elevation, and wind direction.

With its Application, Brooke County Power submitted a study entitled “ESC Brooke

County Power I Project Noise Impact Analysis Report” (the “Noise Study”) that evaluated pre-

construction, construction and operational noise. (Application App’x, Ex. 25). The Noise Study

substantially complied with Siting Rule 3.1 .m.4 and it provides the Commission with important

and sufficient information as to the impacts of the Project. Although OVJA and Local Residents

complained that the Noise Study did not precisely comply with the technical aspects of &&

3.1 .m.4, they did not dispute the predicted levels of sound of the Noise Study and they did not

prepare a noise study of their own.

1. Brooke County Noise Ordinance

Brooke County has established its community standard for excessive noise levels as

follows:

The County Commission of Brooke County, West Virginia, does hereby declare noise levels in excess of 65 decibels (dB), which levels are either intermittent or continuous for duration of at least

26

thirty minutes to be a hazard to public health and safety in Brooke County, West Virginia, exclusive of any municipality therein, and where such noise levels rise to the level of a public nuisance, the same are subject to abatement. . . .

Brooke County Noise Ordinance, at 0 1.

Several points are worth noting with respect to the Noise Ordinance. First, the Brooke

County Commission has actually taken the time and put forth the effort to establish its community

standard for noise. Second, it has designated 65 dB9 as that standard and provided for an abatement

procedure if the noise level is exceeded and becomes a public nuisance.

Brooke County Power does not exceed 65 dB at any receptor during construction or

operation. In fact, during construction, at the closest receptors, approximately 1100 feet to the

west (Application App'x, Ex. 25, at 1 S), the sound levels predicted are typically about 20 dB below

the community standard, calculated and predicted using a very conservative methodology. At the

operations stage, the levels predicted at the closest receptors are between 9 dB and 15 dB below

the 65 dB community standard, again using very conservative assumptions and without any

mitigation efforts considered.

Moreover, the manufacturer of the equipment (General Electric) is required to guarantee

that it will meet the low dB levels at the plant which result in the predicted levels at the closest

receptors in the Noise Study.

The noise levels at the plant that would produce these low values at the receptors are "must-meet" guarantees from the equipment supplier and contractor. "Must-meet" guarantees are those that must be achieved no matter the cost to the equipment provider General Electric to meet them.

(Rebuttal Testimony of John P. Black, P.E. ("JPB-R"), at 8-9).

Staff witness Don Walker sets forth some examples of dB levels of sound in his Exhibit 1 to the Direct Testimony of Donald E. Walker ("DEW-D'). As his Exhibit demonstrates, 65 dB is equivalent to a level between conversational speech and a shower; or an air conditioner and a dishwasher.

27

What this means for the local community is that at both the construction and operations

stages of the Brooke County Project, the noise levels will be well below the community noise

standard of 65 dB.

CHAIRMAN:

Okay. And in your studies did you get any indication that the --- the noise from the plant was going to exceed 65 dB?

A. [Ms. Carol Colby] No.

CHAIRMAN:

That it would be outside the limits of the ordinance?

A. Ididnot.

(Oct. 17,2017 Hrg. Tr., at 297).

ii. Siting Rule 3.1.m.4 Noise Study

Behrens and Associates (”Behrens”), the same consulting firm which prepared the noise

study in Harrison County Power, performed the Brooke County Noise Study. Ms. Carol Colby,

an acoustical engineer, was the lead for the Study. Ms. Colby is an acoustical engineer with

experience in computer noise modeling, industrial noise studies, code compliance studies and

noise and vibration monitoring. (Direct Testimony of Carol Colby (“CC-D’), App’x, at 1). Ms.

Colby is also a civil engineer with a background in land development, structural, geotechnical and

environmental engineering. Id.

iii. Pre-Construction Sound

In preparing the Brooke County Noise Study the first step was to locate representative

study sites to assist in determining pre-construction, or ambient, noise levels. South and east of

the Project are former surface coal mine lands that have been backfilled and revegetated. The

28

Project site itself is bordered by undeveloped woodland and the WMA to the north, east and south

and an operating well pad, the WMA, a gas pipeline right of way and a wood mulching production

operation to the west and southwest. (& Application App'x, Ex. 10).

Residences in the community are north of the Project beyond the woodlands and mostly

north of Alternate Route 27 (Eldersville Road) and the 8-10 residences to the northwest and west

beyond the well pad and WMA on Route 16 (Tent Church Road) between Alternate 27 and Quinn

Lane, a distance of approximately three fourths of a mile. Two residences are located to the

southwest at the junction of Tent Church Road and Quinn Lane and the owners of those residences

have reached agreements with Brooke County Power and have withdrawn their opposition to the

Project. (Oct. 18,2017 Hrg. Tr., at 22-23,63-64). The Project is located at 170 Quinn Lane.

Due to the large amount of undeveloped and unoccupied land surrounding the Project site,

in order to determine representative ambient levels in the community, Behrens chose two ambient

study sites along Eldersville Road to the northeast and northwest, two ambient study sites along

Tent Church Road to the northwest and southwest, and one ambient study site along Quinn Lane

to the southwest. (Figure 3.1, Application App'x, Ex. 25, at 10).

The preconstruction noise levels were determined by a 7 day average from November 8,

2016 to November 15,2016. Generally, the averages were in the mid to high 40 dBA range with

the lowest ambient sound levels at the study site on Quinn Lane. (Tables 3-2 and 3-3, Application

App'x, Ex. 25, at 11). These preconstruction levels are probably lower than peak normal periods

as the mulching production plant was not operating during the week of the ambient study. (Oct.

17,2017 Hrg. Tr., at 289).

The Noise Study was not based on the worst-case conditions. At the time the Brooke County Power Noise Study was conducted, the mulching plant was not operating. Thus, the ambient noise reflected in the Study is very likely lower than actual because the plant was

29

not operating and truck traffic to and from the mulching plant was obviously lower than what occurs when the plant is in operation.

iv. Construction Noise Levels (JPB-R, at 8).

The predicted noise levels for all construction activity phases at the two closest receptors

are found at Table 5-6 of the Noise Study (Table 5-6, Application App'x, Ex. 25, at 27) and at

Table 6-1 for one mile and five mile distances (Table 6-1, Application App'x, Ex. 25, at 43). All

of these predicted noise levels are extremely low and well below the noise ordinance level of 65

dB. For instance, the closest receptor predicted decibel noise levels associated with the project are

in the low to high 40 dBA range, the one mile predicted level is in the 20 to 30 dBA range and the

five mile levels are all below 20 dBA. These values are lower than ambient noise levels associated

with local traffic. (See Figures 4-2 and 4-3, Application App'x, Ex. 25, at 20-21).

To calculate these predicted values, five construction phases were evaluated and noise data

for the construction equipment that would be used during a phase was obtained. These phases and

equipment to be used are shown on Tables 5-1 through 5-5 (Tables 5-1 - 5-5, Application App'x,

Ex. 25, at 22-25). The calculations were made very conservatively by assuming that all equipment

per phase operates concurrently (Rebuttal Testimony of Carol Colby ("CC-R"), at 4).

Q. [By Mr. Feinberg] Okay. Well, --- well, tell me what you mean by very conservative. If you're calculating the noise coming from construction site how --- how do you do that with all these pieces of equipment and trucks on the site?

A. [Ms. Colby] So you typically wouldn't use all trucks. I mean, you know, for each day we're given how many trucks can be used on a specific phase of construction. It may be that not all trucks are used or not all compacters are used or backhoes, but in this case, to be conservative, we assume that everything was running all at once.

Q. Okay. So let's just look at phase two, concrete placement. Are you saying that in order to be conservative your study

30

assumed that every single one of those pieces of equipment was operating --- was constructing or operating at the same time?

A. Correct.

(Oct. 17,2017 Hrg. Tr., at 292-293).

The results of these calculations became the predicted values found in Tables 5-6 for the

closest receptors and Table 6-1 for one mile and five mile distances. The closest receptors are

approximately 1100 feet to the west. Receptor 1 is the mulching facility and receptor 2 is a

residence along the east side of Tent Church Road. The increased noise level in daytime is quite

insignificant, especially when it is understood to be a very conservative evaluation technique for

the predicted construction activities. Additionally, receptor 1 is the mulching facility, which was

not operating when the ambient noise was measured. If it had been operating, the ambient level

would be higher and the increase in noise level differential would have been lower. (Oct. 17,201 7

Hrg. Tr., at 290).

Perhaps recognizing that the construction noise levels did not show any significant increase

above ambient levels OVJA and the Local Residents attempted to redefine Construction noise to

include Building Trades construction workers traveling to and from work at the construction site.

This approach is illogical to say the least. First, driving to and from the worksite is not

performing construction work and thus it is not generating construction noise. Secondly, during

the 15 or so minutes that the Building Trades construction workers are driving vehicles along Tent

Church Road twice per day little or no construction work is being performed on the construction

site, because the workers are in their cars. Additionally, if you review Tables 5-1 through 5-5

construction trades vehicles and workers vehicles have been included in the calculations of the

predicted values for construction work.

31

v. Operations

Table 5-8 (Application App'x, Ex. 25, at 39) sets forth the predicted operations noise levels,

at the closest receptors, and Table 6-2 (Application App'x, Ex. 25, at 43) sets forth the predicted

noise levels at one mile and five miles. These closest receptor levels are well below the community

standard of 65 dB by respectively 13.3 dBA and 9.5 dBA. At one mile the dB level ranges to the

high 30 dBA range and at five miles to the low 20 dBA range.

Moreover, none of these predicted levels include the considerable mitigation efforts which

will be made by Brooke County Power as described by Mr. Black.

Q. [By Mr. Feinberg] Does Brooke County Power intend to implement any noise mitigation features?

A. [Mr. Black] Yes, we have mitigation plans in place. In addition to the sound proofing and acoustic enclosures within the plant, Brooke County Power is constructing a berm and planting more than 500 trees and shrubs1° to attenuate sound from the facility. Neither the berm nor the plantings were considered in the Noise Study but the berm and trees are consistent with the statement in the Study: "Erecting acoustically rated barriers around noise emitting equipment where accessibility to operations is not inhibited and at the edge of BCP site can reduce noise levels at the nearby receptors."

(JPB-R, at 8).

lo The correct number is 500. MI-. Black explained and corrected this number on the stand. (Oct. 18,2017 Hrg. Tr., at 1 17).

32

c. Brooke County Power's consultations with U.S. Fish and Wildlife Service and West Virginia Division of Natural Resources reflect the Project wiIl have no adverse impact on any rare, threatened or endangered species.

Brooke County Power has completed Section 7 consultation with the USFWS. (JPB-D, at

28). The USFWS recommended a Running Buffalo Clover survey be undertaken for the Site.

(Application App'x, Ex. 23). The Survey has been completed and there was no evidence of this

species on the Site. (JPB-D, at 28).

Brooke County Power also completed a Lands Inquiry with the West Virginia Department

of Natural Resources ("DNR') for the Project. DNR has indicated that its data show occurrences

of mapped nesting sites for the rare Henslow's sparrow and grasshopper sparrow outside the

Project footprint, but within the overall Project area. (Application App'x, Ex. 24). DNR noted that

ground disturbance should be conducted after the breeding season, if possible. (Id.). Brooke

County Power will work with DNR to schedule ground disturbance to avoid breeding areas for the

Henslow and grasshopper sparrows. (Application App'x, at 74). No party produced any evidence

challenging or refuting USFWS or DNRs conclusions regarding species on the Site.

d. The West Virginia Division of Culture and History, State Historic Preservation Office has concluded the Project will have no effect on architectural or archaeological resources.

To meet the requirements of the West Virginia Division of Culture and History, State

Historic Preservation Office ("SHPO") with regard to the Project, Brooke County Power submitted

a consultation letter and Desktop Analysis to SHPO on November 8,2016. SHPO responded by

letter dated December 6,2016, concluding that the Project will have no effect on archaeological

historic properties. (Application App'x, Ex. 27; MF-D, at 11). SHPO requested a Viewshed

Analysis in order to complete its review concerning architectural resources. SHPO, in its interest

to evaluate the project's "indirect and visual effects to architectural properties" requested color

33

photographs of construction of all properties that are forty-five years or older and will have a line-

of-sight of the proposed project area. (Application App'x, Ex. 27). Brooke County Power

submitted the requested Viewshed Analysis to SHPO on June 13,2017. (MF-D, at 11). Upon

review of the Viewshed Analysis SHPO concluded that there is no effect on historic or

architectural resources. (Oct. 18,2017 Hrg. Tr., at 12).

On cross-examination, counsel for OVJA and the Local Residents asked Brooke County

Power witness Mr. Fluharty numerous questions concerning the June 13,20 17 Viewshed Analysis

submitted to SHPO, and entered the Viewshed Analysis into the record as OVJA-LR Cross 4. In

response to cross-examination questions concerning the photographs in the SHPO Line of Sight

Photo Log, Cross 4 Exhibit pages 43-65, Mr. Fluharty testified that the structures in the

photographs "may potentially have a line of sight" of the Facility, (Oct. 17,20 17 Hrg. Tr., at 204-

16). Of the nineteen structures pictured, thirteen of them are residences, with the others being a

shed, a structure, and garages, including a commercial auto garage.

Mr. Fluharty presented the following testimony explaining the phrase "may potentially

have a line of sight":

A.

Q.

A.

[Mr. Fluharty] All those homes that we just looked at may potentially have some view of the power station once it's built. Not all of them would have that and it will depend upon the season. During the summer months when the foliage is out, most of these places I imagine will not have a view of the power station, but when the leaves are off in the wintertime, they may see the top of the stacks or the top of the ACC unit.

[By Ms. Riggs] Okay. So in most --- in all cases it would just be a partial view, not seeing the entire plant?

Yes. You know, also there's a few hills and ridges along the area that may block most of the visual of that plant from those different homes.

34

* * *

Q. And the partial view may just be a sliver of the top of the stack?

A. Yes, that's correct.

(Id. at 218-19).

Mr. Fluharty further testified that currently visible in the view from Rendering 8 shown on

pages 26-27 of OVJA-LR Cross Exhibit 4 is a tank on the Southwestern Energy wellsite, and that

same tank is also visible in the line of sight of the location in photograph #45 on page 65 of Cross

Exhibit 4. (Id. at 220-21). On cross-examination, Mr. Fluharty testified that every structure

reviewed during OVJA-LR's counsel's cross-examination could potentially have a view of the

wellsite tank. (Id. at 225-26).

The result of the SHPO Viewshed Analysis is that 13 residences may potentially have a

line of sight to view what may be a very small portion of the Facility, and likely only during some

parts of the year. This is a very minimal result and does not take away from the substantial benefits

the region and the State receive from the Project as hlly supported in the evidence in this case.

Furthermore, it is clear from the evidence that the Project is located in an area of other commercial

development with facilities visible to residences in the surrounding area. In addition to the tank

on the Southwestern Energy wellsite that is visible to residences, some residences are located in

the immediate proximity to a commercial auto garage business as shown in photos on pages 36

and 57 of OVJA-LR Cross Ex. 4. Also, a wood mulching production operation facility exists on

Tent Church Road. Commercial enterprises are not new to the area residents.

In response to questions from Chairman Albert, the following dialogue occurred:

35

CHAIRMAN:

. . . What is the purpose of the SHPO certification that you get?

A. [Mr. Fluharty] It's basically to clear us of any archaeological or architectural impacts to the area, so what that means is obviously for archaeological anything digging in the ground we might be able to dig up something, but since the site has been previously disturbed by a previous strip mining operation that there's the likelihood of finding anything, any artifacts is practically none. So they have given us clearance on the archaeological.

CHAIRMAN:

No arrowheads, no teepees?

A. No. No, we're not going to find any of that because it's been disturbed, so all that ground has been moved around and, you know, chances of finding anything are really slim.

CHAIRMAN:

Okay.

A. So they know that. So they've released us of that and then we had --- their request we had provided this extra documentation of all the homes in the area that may potentially have a view of the power station. And they request that a photo documentation of that be made and they're more concerned about the residents or structures that are more than 45 years of age and that the plant may --- it may have a visual view of the plant. That's what they're looking for.

CHAIRMAN:

So SHPO stands for?

A. The State Historical Preservation Office or what we call as West Virginia Division of Culture and History.

36

CHAIRMAN:

Okay. Is there a requirement under SHPO or under any of the things that you’re aware of that --- that construction of a project like this not be visible from anyplace?

A. No, there’s nothing I know that --- that --- yes, those can be visible. Yes. They will allow them to be visible.

CHAIRMAN:

And SHPO doesn’t automatically --- you know, if you go out on the end of the porch and lean around the corner and can see it that doesn’t mean that the project can’t go forward?

A. Right.

(Oct. 17,2017 Hrg. Tr., at 227-29).

SHPO gave its “blessing” to the Project, determining, after its review of the Viewshed

Analysis, that the Project would not affect the area’s architectural properties requiring further

consultation concerning the Project. No evidence was presented to refute Mr. Fluharty’s testimony

that there are no requirements that a project can only be constructed if no residence will ever have

a view of the project. No party presented any evidence whatsoever that a project must be rejected

if it is visible from area residences.

e. The Project will have no adverse impact on surface and groundwater in the Project area and Brooke County Power will obtain any necessary permits related to water resources in the Project area.

Thrasher completed a “Surface and Groundwater Resources Report” for the Project to

investigate and describe the aquatic resources present at the Site and the potential effects on surface

water and groundwater hydrology that may occur as a result of construction of the Project

(“Hydrology Report”). (Application App’x, Ex. 19). The Hydrology Report concluded that the

proposed Project is not anticipated to significantly affect surface water resources within the Site.

The Site was delineated in September 20 16 and one perennial stream (Parmar Run) and twelve

37

wetlands were identified. (Id. at 4). Brooke County Power witness Mr. Fluharty testified that

nine of the identified wetlands are located within the proposed grading limits and/or within the

proposed 101 acre Facility boundary. Mr. Fluharty further testified that the Project has been sited

and designed to avoid and/or minimize impact to surface water resources during construction,

including the use of cuts, fills and grading. (MF-D, at 9). Further, Brooke County Power will

utilize Best Management Practices (BMPs) such as silt fences, compost filter socks, sediment

ponds, and temporary seeding to prevent sedimentation and/or pollution of adjacent aquatic

resources that are not proposed to be impacted by construction of the Facility. (Id.). Permanent

post-construction BMPs will be designed in order to avoid or to minimize the potential for surface

water effects from stormwater discharges during operation of the Facility. (Id.). Brooke County

Power witness John Black testified that Brooke County Power has received its jurisdictional

determination from the Army Corps of Engineers and there are no waters of the United States on

the power project property. (Oct. 18, 2017 Hrg. Tr., at 14). Brooke County Power has filed an

application for a Section 401 state water quality permit with the West Virginia Department of

Environmental Protection. (Id. at 15).

The Project will not impact groundwater on the Site because all construction activities are

expected to conclude many feet above the extent of known aquifers. (MF-D, at 10). Mr. Fluharty

testified that the Facility’s foundation plan will account for localized groundwater fluctuations,

and, if necessary, additional precautions will be taken by Brooke County Power’s contractor. (Idl).

No evidence was presented by any party disputing or refuting the hydrology of the Site or the

conclusions set forth in the Hydrology Report, and no party cross-examined any Brooke County

Power witness concerning the Hydrology Report.

38

f. Brooke County Power has submitted an air permit application to the state agency that holds jurisdiction to regulate air emissions: the West Virginia Department of Environmental Protection, Division of Air Quality.

Brooke County Power has the potential for air emissions from several components of the

Project, and an air quality permit is necessary for the construction and operation of the proposed

components of the Facility. Brooke County Power submitted its air permit application to the West

Virginia Department of Environmental Protection, Division of Air Quality (“DAQ”) in April 201 7.

(JPB-D, at 27). Brooke County Power has verified that the air permit application that DAQ is

reviewing accurately represents the current design basis for the Brooke County Power Facility.

(Rebuttal Testimony of William Hanna (“FWI-R’’), at 4). Brooke County Power witness Mr.

William Hanna testified that the air permit application is receiving an extensive review by DAQ

and the United States Environmental Protection Agency, including numerous federal and state air

pollution control and public health protections. (u). The draft air permit, when issued by the

DAQ, is subject to a 30-day public comment period. Following the public comment period the

DAQ will issue an air permit for the Facility. (JPB-D, at 28). Mr. Hanna opined that the review

process is robust and well-established, ensuring that this plant will not cause or contribute to

adverse health impacts. (WH-R, at 4).

West Virginia has a statutory and regulatory framework in place setting forth the

requirements and procedures for the review and issuance of an air permit for the Facility,

conducted under the authority granted to the DAQ. Brooke County Power is well aware of the

requirements and procedures it must follow to obtain the required air permit, and by its agreement

to the conditions set forth in the Partial Joint Stipulation, Brooke County Power has agreed that it

will obtain an air permit necessary for the Facility. Further, Brooke County Power will comply

with any and all requirements of the air permit issued to it by the DAQ. (WH-R, at 5). The

39

Commission can grant a siting certificate for the Project contingent on Brooke County Power

receiving the necessary and applicable air permit from the DAQ. The DAQ has the sole purview

to place any necessary specific requirements on the air permit it issues for the Project. Thus it is

not necessary, or appropriate, for the Commission to place specific requirements on the air permit

for the Project.

g. Brooke County Power will fully fund the construction of all water and sewer infrastructure improvements necessary to provide these services to the Project.

The Project will utilize water and sewer services for both construction and operation.

During construction water service will be necessary for potable use, cleaning, and sanitation

services for the construction workers on the Site. Water will also be needed for dust control and

testing. (JPB-D, at 33-34). An average water use of 117 gallons per minute is estimated during

operation of the Project. The uses of water during operation are for steam to drive the steam

turbine, cooling the intake air into the combustion turbines, and potable drinking and sanitary water

for the staff, along with general wash and mop water. (Id. at 26-27,34). During both construction

and operation, sewer service will be necessary for sanitary uses for construction workers and staff.

Mr. Black testified on cross-examination that Brooke County Power had met with the City

of Follansbee and the parties are working on an agreement for water service from the City of

Follansbee to be extended to the Site. (Oct. 18,2017 Hrg. Tr., at 29). Mr. Black testified on cross-

examination that with regard to sewer service to the Site, Brooke County Power has received an

estimate for installation of a sewer connection to the Brooke County Public Service District. A

new sewer service from the Public Service District to the Site will be required, and Brooke County

Power will be providing a $2.7 million upgrade to the local community. (Id).

40

Mr. Black testified that Brooke County Power will fund 100% of the costs to extend water

and sewer service to the Site. (Id. at 30).

h. Any effect upon traffic occasioned by the Project will have a minor impact on the local transportation network during the construction phase, and virtually no impact on the local transportation network during the operational phase.

Brooke County Power is the only party that completed a study of the effect of the Project

upon traffic. Indeed, Brooke County Power’s witness Mr. Kirk completed a Traffic Impact Study

(“TIS”) to predict how the construction and operation of the Project might impact the local

transportation network. Mr. Kirk arrived at three central conclusions. First, during the

construction phase, traffic generated by the Project will have a minor impact on the local

transportation network. Second, during the operational phase, the traffic generated by the Project

will have virtually no impact on the local transportation network. Third, Mr. Kirk made certain

recommendations that Brooke County Power agreed to implement. Mr. Kirk’s conclusions are

uncontested by any technical testimony in the record, and, indeed, the Staff has agreed that the

report is satisfactory and also supports the recommendations made by Mr. Kirk. (DEW-D, at 9-

11). Therefore, Brooke County Power will address these points in turn.

1. Construction phase traffic generated by the Project will have a minor impact on the local transportation network.

There is no doubt that traffic will increase during the construction phase of the Project.

That is not the question. The question is what effect will the construction phase traffic have on

the local transportation network? The answer, it turns out, is minor. And, moreover, the effect of

construction traffic is not permanent; instead, this period is approximately 30 months.

(Application App’x, Ex. 26, at 4). Relying upon a national methodology, including U.S.

Department of Transportation guidelines and highway capacity software from the Federal

41

Highway Administration, together with traffic study guidelines from the West Virginia

Department of Highways (“DOH”) (Oct. 17,20 1 7 Hrg. Tr., at 1 16- 17; Application App’x, Ex. 26,

at 6), Mr. Kirk’s conclusion concerning the effect on traffic during the operational phase is as

follows:

The analysis shows that the anticipated traffic generated by the construction of the ESC Brooke Power facility does not have a detrimental impact to the operation of the existing transportation network and that the primary impacts are confined to the intersections near the facility. The existing transportation network provides numerous paths for workers, material, and equipment deliveries and allows trips to distribute and connect to the major regional arterial routes.

.

(Application App’x, Ex. 26, at 21). This analysis is based upon the proposition that “[tlhe proposed

power plant is projected to generate 341 PM peak hour trips and 341 AM peak hour trips, combined

from construction workers and construction truck traffic.” (Id. at 2). In addition, this is a

conservative analysis according to Mr. Kirk’s testimony:

Q. [By Mr. Shuman] Would you consider your report to be conservative on the one hand or [liberal] on the other? And tell us what you mean by whichever of those you choose.

A. [Mr. Kirk] I would consider it [to] be conservative. Everything is based on a peak day. It may only exist for a portion of the project. We also analyze only the peak hours and within that, the peak hour factors we’re really looking at peak 15 minute increment during the day. And we’ve estimated the vehicles to a worst case scenario.

(Oct. 17, 2017 Hrg. Tr., at 113-14). Even using peak days and hours, along with a worst case

scenario vehicle estimation, the fact remains that the capacity analyses “show that the construction

phase traffic generated by the ESC Brooke County Power LLC project will have only minor impact

on the operation of the existing transportation network, but that the intersections studied will

operate at an acceptable level of service per the guidelines established by TED 106-2.”

42

(Application App’x, Ex. 26, at 3). Therefore, the impact on traffic from construction of the Project

will be minor based on Mr. Kirk’s analysis, which, again, is the only traffic impact study in the

record.

ii. Operational phase traffic generated by the Project will have virtually no impact on the local transportation network.

It is not difficult, therefore, to gather that if the effect on traffic during the construction

phase is “minor,” then the effect on traffic during the operational phase will be even less than

minor. And, in fact, that is the case. In this regard, Mr. Kirk stated as follows:

An initial trip generation estimation for the completed power plant shows that the facility in operation will [employ] approximately 30 employees and generate an anticipated volume of 23 peak hour trips. This volume of traffic has virtually no impact to the transportation network and a full Traffic Impact Study (TIS) for the operating condition is not necessary. Per WVDOH Traffic Engineering Direction (TED) 106-2 (Proceduresfor Conducting u Trufic Impact Stud’), a 100 peak hour trip generation is typically required before a TIS is required. The trips generated by the operating power plant will be dispersed within the local roadway network and will have no operational impact beyond the immediate roadway network adjacent to the facility and virtually no impact on the roadways beyond 1 -mile of influence.

(Application App’x, Ex. 26, at 2) (emphasis in original). In other words, the volume of traffic

during the operational phase is so low that it does not even require a study to determine that there

will be “virtually no impact” to the transportation network. Accordingly, after the 30 month

construction period, traffic in the area will be virtually unaffected.

iii. Brooke County Power agreed to implement Mr. Kirk’s recommendations to further improve traffic conditions.

Part of Mr. Kirk’s scope of work included the implementation of improvements.

(Application App’x, Ex. 26, at 21). Mr. Kirk provided a list of recommended improvements as

follows: (1) widening CR 714 for the 900 feet between CR 16 and the current entrance to the Cross

43

Creek WMA; (2) installing a double yellow centerline on CR 16 from CR 714 to WV 27 ALT; (3)

upgrading the "TO US 22" signing from WV ALT 27 to US 22 via Colliers Way to standard

WVDOH signing standards at several locations; and (4) directing truck traffic and equipment

deliveries generated by the Facility to US 22 via CR 2/1 and CR 1 or to WV 2 via WV 27 ALT,

including reviewing existing signage on CR 2/1 advising trucks to utilize alternate routes. (a at

25-26). "No long-term recommendations or geometric improvements are needed due to the facts

that the operating power plant will not generate enough traffic to impact the transportation network

and since the construction phase traffic will not create unsatisfactory level of service at any study

intersection." (Id. at 26) (emphasis in original). Mr. Kirk testified that his understanding is that

Brooke County Power intends to implement his recommendations. (Oct. 17, 2017 Hrg. Tr., at

115).

In sum, therefore, the effect of the Project on traffic ranges from minimal to no impact, and

Brooke County Power has agreed to undertake the recommendations of Mr. Kirk. Traffic is simply

not an issue in this case.

B. The Proiect satisfies the second part of West VirPinia Code 6 24-2-llc(c) because the PILOT Ameement and related leases do not offend the public interest and construction of the Facility will result in a substantial positive impact on the local economy and local employment.

If, in Part One of the Lonaview test set forth in Section II.A,l, supra, the Commission

concludes that taken as a whole, the positive impacts relating to the various interests outweigh the

negative impacts on the various interests in this matter the Commission considers the second aspect

of the analysis. W. Va. Code 24-2-llc(c). In Part Two of that test, the Commission decides

whether a project's public funding, if any, and property tax abatement, if any, offends the public

interest, and whether construction of the Facility will result in a substantial positive impact on the

local economy and local employment.

44

1. The PILOT Agreement and related leases will provide substantial and positive economic impacts to Brooke County, and, therefore, do not offend the public interest.

Apart from OVJA and the Local Residents, all other parties agree that the terms and

conditions of the PILOT Agreement between Brooke County Power and the County Commission

of Brooke County, West Virginia (the “Brooke County Commission”), the Board of Education of

Brooke County, West Virginia, the Sheriff of Brooke County, West Virginia, and the Assessor of

Brooke County, West Virginia, and the terms of the Lease Agreement and the Master Sublease

between the Brooke County Commission and Brooke County Power, do not offend the public

interest and the construction and operation of the Facility will result in a substantial positive impact

on the local economy and local employment. (Joint Exhibit 1, at 10).

The Facility will be built on an approximately 20 acre portion of the DNRs 2,078 acre

Cross Creek WMA. Under West Virginia law, this property is exempt .from taxation because it is

owned by the State. See W. Va. Code 6 11-3-9(a)(2). Thus, the current ad valorem property taxes

for the WMA are zero dollars per year. Now, in this case, by virtue of a PILOT Agreement, a

Lease and a Master Sublease, the Brooke County Commission is, in effect, the lessor of the

Facility, and Brooke County Power, is, in effect, the lessee, subject to certain liens and a repurchase

agreement. Accordingly, the property is still not subject to taxation by the State or any subdivision

thereof. See W. Va. Code 5 8-19-4. Were that the end of the analysis, the amount of taxes on the

property would still be zero. But, it is not the end of the analysis.

Under West Virginia Code 3 8-19-4, a county commission is permitted to enter into a

PILOT agreement under which payments may be made in lieu of taxes. W. Va. Code 9 8-19-

4. Thus, the PILOT Agreement, which was executed by Brooke County Power, the Brooke County

Commission, the Brooke County Board of Education, the Brooke County Sheriff, and the Brooke

45

County Assessor, taken together with the Lease and Master Sublease, constitute an effective

payment in lieu of taxes as contemplated by the West Virginia Code. And, whereas, before Brooke

County Power expressed its interest in this Site, the taxes collected on the acres amounted to zero

dollars, the payments received by the Brooke County Commission and the Brooke County Board

of Education will now total a minimum of $27,34 1,622. (TS W-D, at 7). That amount is calculated

(conservatively) as follows: $1,000,000 upon the transfer of the property, $433,000 to the Brooke

County Commission, and $167,000 to the Brooke County Board of Education with both of the

latter payments escalating at a minimum of 2.5% per year. (Id.). Thus the average payment per

annum for the 30 years is $91 1,387. These payments represent a sizable amount of money that

will benefit the taxpayers of Brooke County for years to come as opposed to no tax revenues."

PILOT agreements are economic development tools, which are designed to further the

public interest by attracting development. Indeed, the following colloquy is informative:

CHAIRMAN:

Is the PILOT arrangement something unique and --- and individual to West Virginia?

A. [Matthew J. Dorn] No, it's used every --- in every state in the --- in the country ---

CHAIRMAN:

And the ---

A. --- and the world.

I 1 The only evidence in the record from OVJA and the Intervenors is from Joseph Olenick, which is, in essence, that the PLOT Agreement does not "add up" for him. (Direct Testimony of Joseph Olenick ("JO-D"), at 2). With due respect to Mr. Olenick, that is because he is discounting (1) the substantial economic benefits of the PILOT Agreement, Lease and Sublease; (2) the substantial economic benefits in the form ofjobs, taxes, and other stimuli to the State and local community attributable to the Project; and (3) that the State is receiving substantial mitigation for the Project (above what is required) for both the WMA at issue, and other lands that the State can purchase and add to protected areas that are not brownfield sites that were already mined. In sum, the PILOT Agreement does not add up for Mr. Olenick because he is not using all of the numbers in his arithmetic.

46

CHAIRMAN:

--- purpose of a PILOT is what?

A. To, you know, incentivize economic investment in the state and also to the level set with other competing states. For instance, in Pennsylvania they don't have a personal property tax. So if you built --- which I am. If you built a power plant in Pennsylvania, you'd only pay taxes essentially on the site improvements so that the taxing base is much lower than it would be in West Virginia.

So these PILOT agreements essentially levelize the tax landscape between the neighboring states to allow power plants to also be built in West Virginia.

(Oct. 17, 2017 Hrg. Tr., at 180-81). The entire point of a PILOT agreement is for the elected

officials of a county or municipality-in this case, the Brooke County Commission, the Brooke

County Board of Education, the Brooke County Sheriff, and the Brooke County Assessor-to

assess and determine what payment is appropriate and why, together with deciding whether to

enter into such agreement. It is not difficult to conclude that a minimum of $27 million in

payments is much better than zero dollars in taxes. And the direct and indirect economic benefits

to Brooke County businesses of purchases, services, and rentals made by workers and Brooke

County Power itself will be a substantial benefit to the County. These officials are taking

advantage of a unique opportunity in the form of a location that meets Brooke County Power's

needs for the Facility. It should also be noted that the site of the Project is a former coal mine that

has been reclaimed. There are few-if any-alternative uses for this brownfield site that could

generate even a tiny fraction of what Brooke County can expect to receive by virtue of the PILOT

Agreement and the related leases.

47

Furthermore, both the Brooke County Commission and the Brooke County Board of

Education expressly stated that the PILOT Agreement and Lease and Master Sublease will

promote the public interest. In fact, both the Commission and the Board have agreed that:

The Commission has found, and hereby finds, that the agreements herein contained and the consummation of the transactions in connection herewith will promote the public interest and public purposes by, among other things, providing certainty and soundness in fiscal planning and promoting the present and prospective prosperity, health, happiness, safety and general welfare of the people of the County.

(Application App’x, Ex. 20A, at 2-3).12 The PILOT Agreement, Lease and Master Sublease are

substantially in the public’s interest as Brooke County will receive payments it would not

otherwise receive. In exchange, Brooke County Power receives the same certainty in the payments

it must make for the life of the Agreements, and an incentive to build in West Virginia, as opposed

to Pennsylvania, where there are no personal property taxes. (Oct. 17,20 17 Hrg. Tr., at 180). The

benefit to all parties is clear, as are their respective motivations, in signing the Agreements. The

PILOT Agreements and the related leases, therefore, do not offend the public interest, in part,

because they are part of a legislative policy to attract businesses to West Virginia, and, in part,

because of the benefits the Agreements wili bring to Brooke County.

2. The construction of the Facility will result in a substantial positive impact on the local economy and local employment.

This topic was treated above in great length. Here, Brooke County Power will summarize

the positive impact on the local economy and local employment. The PILOT Agreement will

provide substantial payments to Brooke County for a period of thirty years. According to Mr.

White, the majority (an estimated 75%) of the construction workforce will be residents of West

l2 The Board of Education made the same fmdings with respect to the public school students in the County. (Application App’x, Ex. 20A, at 3).

48

Virginia. There will be substantial increases in sales tax, use tax, payroll tax, personal tax, and

corporate tax to the local economy. Apart from the enormous number of jobs that will be created

during the construction phase, the Project will require 30 new full time employees at very

competitive salaries and full benefits. Both the construction workers and the full time employees

will, virtually by necessity, spend money at local West Virginia businesses. Further, an estimated

45% of construction costs will be provided by West Virginia workers and firms. When reviewing

the Witt report, the numbers become staggering. There is no argument that this Project will have

a less than positive impact on the local community; none at all. It is more a matter of how positive

that impact will be. This conclusion is unchallenged in the record by any evidence whatsoever.

Accordingly, Brooke County Power states, unequivocally, that the Project will have a positive

impact on the local economy and local employment. The Project represents new jobs that the State

desperately needs in an industry the W D O has stated is important for the State of West Virginia

to develop in order to compete with neighboring states. This Project is, therefore, a win for the

State, a win for Brooke County, and a win for West Virginia taxpayers.

C. The Commission should approve the Memorandum Agreement with the Building; Trades, inasmuch as it is pood for the economy of the State, including Brooke County, together with the fact that the Commission had approved similar memorandum apreements in the past, subiect to certain caveats.

Brooke County Power entered into a Memorandum Agreement with the Building Trades.

(See Direct Testimony of Steve White (“SW-D”), at 2, Ex. 1). In sum and substance, the

Memorandum Agreement provides, among other things, that “[tlhe parties further agree that the

hiring of construction workers in accordance with said acceptable agreement will ensure to the

extent reasonably possible that said workers will be residents of the local area provided that such

residents are qualified for the trades and tasks for which they are hired.” (SW-D, Ex. 1, at 4)

(emphasis added). While the “local area” may subsume West Virginia, parts of Ohio and parts of

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Pennsylvania, Mr. White-the Director of the Building Trades since 1992-estimated that 75% of

the Building Trades’ workers would come from West Virginia, and, in any event, the majority of

the Building Trades’ workers would be West Virginians. (Oct. 18,2017 Hrg. Tr., at 83-84). Thus,

the purpose of the Memorandum Agreement is several fold, but, in essence, it is designed to favor

West Virginia workers from the Building Trades to work on the construction of the Project. As

discussed above, this leads to many economic benefits on the State and county municipal levels.

Through the Partial Joint Stipulation, every party to this case except OVJA and the Local

Residents request that the Commission approve the Memorandum Agreement, and make clear that

the Commission anticipates that all representations and commitments made by the parties therein

will be kept by the parties. (Partial Joint Stipulation, at 5-6). The signatories to the Partial Joint

Stipulation further request that the Commission should make clear that its approval of the

Memorandum Agreement does not mean the Commission is the proper forum to resolve any

disputes that may arise fiom operating under such Agreement. (Id. at 6).

The Commission has, in previous siting cases, approved similar memorandum agreements

and ordered that “all representations and commitments made by the parties therein be kept by the

parties.” Mount Storm Wind Force, LLC, Case No. 01-1664-E-CNY at 3 1 (Comm’n Order August

29,2002); see also Harrison County Power, at 28. The Commission has hrther held that “approval

of the Memorandum Agreement by the Commission does not mean the Commission is the proper

forum to resolve any disputes that may arise from operating under that Memorandum Agreement.”

Harrison County Power, at 28. There is no reason for the Commission to depart from this approach

in this case. The Commission should approve the Memorandum Agreement, subject to the usual

caveats set forth above.

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D. The Commission’s final order should contain a ruling or a findinp, that Brooke County Power is not constructinp a “transmission line” within the definition of Rule 2.3 of the Siting Rules or West Virginia Code tj 24-2-11a.

As stated in its Application and later Motion for a Declaratory Order, Brooke County

Power respectfully asserts that it is not constructing a “transmission line” that would require

Brooke County Power to obtain a separate Certificate of Public Convenience and Necessity

(TON”). Brooke County Power previously filed a Motion for a Declaratory Order in this regard,

and sought, as alternative relief, that the Commission “declare that the proposed interconnection

facilities that are part of the Project are not subject to a CON proceeding, andor include a finding

to that effect in the Final Order of this case . . . .” (“ESC Brooke County Power I, LLC’s Motion

for Declaratory Relief’ (the “Motion for Declaratory Relief’), at 5). No party has filed a response

to this Motion. Brooke County Power will summarize the key points of the Motion for Declaratory

Relief below.

Chiefly, Brooke County Power is not required to seek a CON as described in Rule 2.3 of

the Siting Rules to construct or operate its interconnection facilities connecting its natural gas-fired

electric generating facility with the transmission system of FirstEnergyMonongahela Power at a

new substation to be owned and operated by FirstEnergy (the “FE Substation”) immediately

adjacent to the Facility because the various wires, cables, conductors, relays, breakers, and

attachment line between the Plant and the adjacent substation do not constitute a “transmission

line” of 200,000 volts or greater subject to the requirements of either 2.3 of the Siting Rules

or West Virginia Code 6 24-2- 1 1 a. Brooke County Power bases its conclusion on the following

factual13 and legal points:

l3 The factual material concerning the interconnection facilities were stated under oath by Mr. Black in an affidavit attached to the Motion for Declaratory Relief.

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(a) The power generated by the Facility will interconnect to the FirstEnergy

transmission system in a new 345 kV three-breaker ring bus FE Substation. The

attachment conductor of the Project will terminate on the transmission owner

insulators on the dead-end overhead structure located just inside the FE Substation,

which will be the Point of Interconnection (“POI”). (See Application, at 5-6;

Application App’x, at 6, 8; Ex. 1)

The FE Substation will be located immediately adjacent to the Project’s switchyard

on a Brooke County Power easement with DNR, and it will be separately fenced

and gated with its own access road dedicated to FirstEnergy’s use. (a Application, at 5; Application App’x, Ex. 1). Brooke County Power will hire the

FirstEnergy approved contractor to construct the FE Substation on FirstEnergy’s

behalf. However, FirstEnergy will be the owner and operator of the FE Substation.

At no point will Brooke County Power either own or operate the FE Substation.

FirstEnergy owns the Tidd-Wylie Ridge 345 kV transmission line, which is located

approximately 800 feet immediately east from the location of the proposed FE

Substation. (a Application App’x, at 6; 8; see also Application App’x, Ex. 2).

FirstEnergy will construct, own, and operate the new, short 345 kV loop line (which

will also be located entirely within the Brooke County Power easement) from the

POI located in the ring bus FE Substation to the 345 kV existing transmission line.

The probable path of the transmission loop line is shown on Ex. 2 of the Application

Appendix. FirstEnergy-not Brooke County Power-will construct, operate

own the transmission loop line to the Tidd-Wylie Ridge 345 kV transmission lead

line.

(b)

(c)

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(d) In Citizens for Responsible Wind Power, Inc. v. NedPower Mount Storm, LLC,

Case No. 04-1752-E-C (Comm’n Order Aug. 23, 2005),14 opponents of an EWG

brought a complaint case alleging that the EWG should be compelled to undertake

a Section 1 la proceeding to obtain a CON before being permitted to construct an

interconnection to an existing 500 kV transmission line owned by Monongahela

Power Company/Allegheny Power (together “Mon Power”). In the NedPower

case, the EWG intended to build both the new substation and approximately 250

feet of line to interconnect that facility with the 500 kV transmission line.

Thereafter, Mon Power would own, control and maintain the new substation and

the line connecting the substation to the 500 kV transmission line. The Commission

dismissed the Complaint, and held that the EWG’s construction of the new

substation and the 250 foot line did not require a concurrent (i.e. brought in the

original, underlying certificate case) or a separate CON proceeding prior to

construction as alleged in the complaint. NedPower, at 18.

The most compelling reason why Brooke County Power is not required to obtain a

CON is that it is not “constructing” a transmission line within the meaning of

2.3 of the Siting Rules or West Virginia Code 8 24-2-11a. The Commission’s

precedent supports this conclusion, insofar as in NedPower, the Commission

concluded as follows: “Although the legislation does not define a transmission line,

a reading of 5 24-2-1 la does not lead to the conclusion that station equipment,

generation station buses, or the interconnecting cable between the station

(e)

l4 It should be notedNedPower was decided prior to the existence of West Virginia Code $24-2-1 IC, and the attendant Siting Rules. In other words, the Commission decided the “siting” issues in NedPower as a CON case under West Virginia Code Q 24-2-1 1.

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transformers and the transmission lines are, themselves, transmission lines.”

NedPower, at 11-12. Thus, the Commission stated that: “[the] part of the station

equipment forming the interconnection between a generating unit and the

transmission lines may be “wires,” “cables” or “lines” of some kind, but they do

not constitute transmission lines subject to the requirements of 6 1 la.” Id. at 13.

Under the reasoning of NedPower, therefore, neither the applicable statute nor the

applicable regulations place a responsibility for obtaining a CON on Brooke County

Power. l 5

(f)

Accordingly, based upon NedPower, an examination of West Virginia Code 24-2-1 la,

and a review of the governing regulations, Brooke County Power respectfblly requests that the

Commission include a finding and conclusion in the Final Order of this case that the proposed

interconnection facilities are not subject to a CON proceeding because they are not a transmission

line.

E. The Cornmission should impose the conditions contained in the Partial Joint Stipulation because those conditions are (1) reasonable and in the public interest: and J2) consistent with the Commission’s past practice.

Brooke County Power, the Staff, the Building Trades, WVONGA, and Commerce (for the

purposes of this section of the brief, the “Stipulating Parties”) joined in the Partial Joint Stipulation,

and proposed and recommend to the Commission that it approve and adopt this settlement among

the Stipulating Parties of all issues raised in this case. The settlement consisted of the following

elements, subject of course, to the Commission’s review and approval:

24. The Stipulating Parties agree that the Commission should approve the Memorandum Agreement that has been entered into among Brooke County Power, LLC, the Upper Ohio Valley

l5 And, in fact, Brooke County Power’s circumstances are more attenuated than those in NedPower inasmuch as Brooke County Power is not constructing any lines-much less a support line-from the FE Substation to the 345 kV transmission line.

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Building and Construction Trades Council, AFL-CIO, and the Building Trades (collectively the “Signatories”), and make clear that the Commission anticipates that all representations and commitments made by the Signatories therein shall be kept by the Signatories. The Signatories further agree that the Commission should make clear that its approval of the Memorandum Agreement does not mean the Commission is the proper forum to resolve any disputes that may arise from operating under such Agreement.

25. The Stipulating Parties agree and recommend to the Commission that the Siting Certificate requested by Brooke County Power in this case be granted to Brooke County Power, and that the Siting Certificate be subject to the following conditions:

1. At least 30 days prior to beginning construction ESC Brooke County Power will provide the PSC notice of start of construction.

2. Prior to the Commercial Operation Date (COD) Brooke County Power shall file a verified statement that the required detailed plans for the Brooke County Power project have been completed, reviewed and approved in accordance with the appropriate codes and standards and where required, under the supervision of a licensed professional engineer.

3. At least 30 days prior to beginning construction of the Project, Brooke County Power shall file a verified statement that certifies that required permits, approvals, certifications, notices, and consultations have been obtained, including the following:

a. PJM Interconnection Services Agreement b. State Historic Preservation Office (SHPO)

Consultation c. United States Fish and Wildlife Service

(USFWS) Section 7 Consultation d. WV DNR Lands Inquiry e. Department of the Army 404 Permit(s) f. State 401 Water Quality Certification g. WV DNR Stream Activity Permit h. Air Quality Permit from the West Virginia

Division of Air Quality i. West Virginia National Pollutant Discharge

Elimination System (NPDES) Pennit j. Groundwater Protection Plan (GPP) k. Site Plan Approval and Grading Permit

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1. Federal Aviation Administration (FAA) Notice of Construction or Alteration

m. Construction Stormwater General Permit and Stormwater Pollution Prevention Plan

n. West Virginia Department of Highways (WVDOH) IAR Engineering and Construction Agreement

0. Above ground Storage Tank Water Resources Protection Act and the Public Water Supply Protection Act approvals.

Provided, however, with respect to the approvals and permits set forth in p., q. and r. below it is recognized that one or more may not be available until immediately before the activity for which the approval or permit is issued, commences, in which event Brooke County Power shall file verified statements within a reasonable time after receipt certifying that the approval or permit has been obtained:

p. Railroad Right of Way Encroachment Approvals q. Building Permits r. Highway Heavy Haul Permits

4. At least 30 days before operation of the Facility, Brooke County Power shall file a verified statement that certifies that all required permits, approvals, certificates, notices and consultations required prior to the start of operation have been obtained, including the following:

a. Stormwater General Permit and Stormwater Pollution Prevention Plan

b. Spill Prevention Control and Countermeasures

e. Emergency Response Plan (ERP) d. Pre-treatment/Discharge Permit - Sanitary e. Water System Connection

(SPCC) Plan

5. Fuel for the Project will be delivered through a pipeline to the plant, constructed, operated and owned by a third party (the “Pipeline Project”). Prior to the beginning of construction on the Pipeline Project, Brooke County Power shall file a verified statement that certifies that a binding contract(s) are or will be in place for:

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a. Installation and construction of adequate natural gas delivery points, including Federal Energy Regulatory Commission (FERC) certificates, if required, for new delivery points on interstate pipelines.

b. Construction and operation of the pipeline necessary to deliver the fuel to the plant site, including all necessary measurement and pressure regulation equipment.

c. A contracted fuel supply.

6. The verified statement filed in connection with Condition 5 above shall provide a verified statement of the pipeline contractor certifying that all options for, or rights of way, and all required permits necessary for the construction and operation of the Pipeline Project have been or will be obtained.

7. Applicant shall plant along the south and southwest border of the property trees and shrubs, using plants selected by the WVDNR to the extent possible. The number of plants may vary based on the availability and the recommendations of the WVDNR and the local Forester. The species selected including White Pine, Arnerican Holly and Pitch Pine, will be between six and eight feet tall at planting, and underlying evergreen and densely growing shrubs (Black Haw, Witchhazel, Spicebush and Eastern Wahoo) will be between one and three feet tall. Brooke County Power is also proposing to use some native deciduous trees (such as Red Maple, Sugar Maple, Big Tooth Aspen, Northern Red Oak, White Oak, Shellbark Hickory and River Birch) between six and eight feet tall for a variety and season variation. Approximately 290 trees and 120 shrubs will be planted.

8. Care of the trees and shrubs planted in accordance with Condition 7 shall be incorporated into the operations and maintenance plan for the site. Any such tree or shrub that does not survive will be replaced in kind during the next planting season.

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9. Brooke County Power shall provide an independent expert report on the amount needed to decommission the facility less market or salvage value and post a Letter of Credit (“LoC”), purchase a bond or surety, or place the present value of such an amount in an escrow fund prior to beginning operation. Brooke County Power recognizes that the plant value far exceeds the decommissioning costs in the first ten (1 0) years of its service life. Nevertheless, the initial LoC, bond or surety, or escrow account shall be no less than $250,000 to cover the cost of soliciting and engaging a decommissioning company. In no case shall the decommissioning amount exceed the maximum value required by the lease agreement, which is $3 million.

The report shall be updated thereafter as mutually agreed between Brooke County Power and the Brooke County Commission, but no less frequently then every ten (10) years thereafter. The decommissioning fund amount may vary over time depending on changes in the estimated market or salvage value of the Project, the estimated cost of dismantling the plant and the expected ongoing life of the Project.

Brooke County Power will provide the report to the Brooke County Commission and request its approval or concurrence of the evaluative expert and each of the periodic reports. The decommissioning fund shall not be part of Brooke County Power’s assets.

Within ninety (90) days of any report that requires a contribution to the decommissioning fund, Brooke County Power will increase the LoC, or bond or surety, or make that contribution into an escrow account held by an agent pursuant to an escrow agreement between Brooke County Power and the Brooke County Commission. Reductions to, or withdrawal from, the decommissioning fund shall not be allowed sooner than ninety (90) days after the Brooke County Commission has been offered the opportunity to review the report. The methods for deposits to and disbursements from the decommissioning fund shall be established within and governed by the LoC, bond or surety, or escrow agreement. Furthermore, the LoC, bond or surety, or escrow agreement must clearly reflect the role of the

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Brooke County Commission and state that the obligations set forth in the agreement apply to Brooke County Power, its successors and assigns.

Each report of the qualified independent third party will also be filed with the Commission as a closed entry in this matter. The Commission retains the right to hire its own evaluative expert to review any of the periodic reports and to take such further action within its jurisdiction as the Commission determines is necessary to protect the public interest.

10. Brooke County Power, and its contractors and subcontractors, shall not block roads by changing shifts or heavy haul while school busses (elementary, middle or high school) are scheduled to be on the roads within 1 mile of the site.

11. Brooke County Power shall file proof of its exempt wholesale generator (EWG) status from FERC prior to commencing commercial operation.

12. The siting certificate shall become invalid if Brooke County Power has not commenced a continuous course of construction within five (5) years of the date the final certificate is granted or has not completed construction by the tenth year following the granting of the certificate without petitioning the Commission for approval to expand these time frames.

13. If Brooke County Power seeks to transfer its certificate, Brooke County Power is required pursuant to Siting Rule 7.1 to notify the Commission in writing of the identity of the transferee and submit an affidavit from the transferee attesting to the transferee’s willingness to abide by the terms of a siting certificate as issued. This condition applies at any time - not just in the operational stage.

26. The Stipulating Parties agree that the terms and conditions of the PILOT agreement between Brooke County Power, the County Commission of Brooke County, West Virginia (Brooke County Commission), the Board of Education of Brooke County, West Virginia, the Sheriff of Brooke County, West Virginia, and the Assessor of Brooke County, West Virginia, and the terms of the Lease Agreement and the Master Sublease between the Brooke County Commission and Brooke County Power, do not offend the public interest and the construction and operation of the facility will

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result in a substantial positive impact on the local economy and local employment.

(Partial Joint Stipulation, at 6-10) (footnote omitted). All or most of these conditions have been

imposed by the Commission on siting certificates in the past, and all parties-barring OVJA and

the Local Residents-agree they are appropriate here.

As noted above, the condition concerning the Memorandum Agreement between Brooke

County Power and the Building Trades has been contained in virtually every siting certificate

before the Commission since 2002. See Mt. Storm, supra. As the Commission noted in Harrison

County Power, “the Commission finds that many of the proposed conditions are typical in siting

certificate orders, and finds that the conditions are reasonable . . .” Harrison County Power, at 28.

In fact, the only real difference concerning the conditions imposed in Harrison County Power and

those suggested herein in the Partial Joint Stipulation concerns Condition 7, and, even then, it is

simply a matter of approach. Condition 7 in Harrison County Power and Condition 7 in the Partial

Joint Stipulation concern the planting of trees and other landscaping work which are designed to

mitigate view and noise. By nature, it is inevitable that the scope of these conditions would be

different given that landscaping and mitigation is not a “one size fits all” proposition. The key is

that in each case, Condition 7 specifically addresses the amount, location, and other requirements

of the mitigation work to be performed post-construction. Thus, while the language may be

different, the import of the condition remains the same. Accordingly, there is nothing unusual

about the conditions suggested in the Partial Joint Stipulation, Brooke County Power has agreed

to abide by the same, and, therefore, the Commission should approve the Siting Certificate subject

to the conditions set forth in the Partial Joint Stipulation.

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111. CONCLUSION

In the welter of OVJA and the Local Residents' campaign to flood the Commission's docket

and multiply the proceedings, it is easy to lose track of what this case is and is not. This case &

about Brooke County Power's Application for a Siting Certificate, whether Brooke County Power

satisfied its burden for the Commission to grant that Application, and whether, on balance, the

Commission believes that the Siting Certificate should be issued. Based on these criteria, Brooke

County submits that it has more than met its burden. What this case is not about is the agenda of

a coal-funded 501(c)(4) corporation that does not appear to act within its tax exempt purpose.

Nevertheless, Brooke County Power has proven that it wants to build a Project that is

supported by WVDO, Commerce, DNR, the elected officials of Brooke County, the Staff, the

Building Trades, and WVONGA. Why? Because the Project will bring in millions upon millions

of dollars in wages, payments, taxes, jobs, economic stimuli, and other measurable benefits. The

Project will also put West Virginia in a position as a State that is not only willing but able to expand

its natural gas infrastructure to take advantage of the wealth beneath our feet, defeating the old

cliche that all of the money generated by West Virginia's natural resources invariably goes out-of-

state. In recent EWG cases, the Commission has recognized the importance of the diversity in the

mix of energy solutions for the stability of the grid, including natural gas.

In balancing the interests of the public, the general interests of the State and local economy,

and the interests of the Applicant, Brooke County Power, the balance tips so far in favor of the

Project that the tray containing any negative factors cannot even rise a millimeter. More jobs

created, more wages paid, more taxes generated, more payments to Brooke County, more benefits

to the local economy, more benefits to the State's economy, and so on, ad inznitum, are all

positives. The Commission, therefore, should issue Brooke County Power a Siting Certificate,

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subject to the conditions and other requirements of the Partial Joint Stipulation and by granting the

other relief sought by Brooke County Power in this case.

Respectfully submitted this 1 '7'h day of November, 201 7

ESC BROOKE COUNTY POWER I, LLC

BY SPILMAN THOMAS & BATTLE, PLLC

Susan J. Riggs (WV State Bar # 5246) Grant P.H. Shuman (WV State Bar ## 8856) 300 Kanawha Boulevard, East Charleston, WV 25301

304-340-3 801 (Facsimile) [email protected] [email protected] [email protected]

304-340-3800

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CERTIFICATE OF SERVICE

I, Lee F. Feinberg, counsel for ESC Brooke County Power I, LLC, do hereby certify that on this 17'h day of November, 2017, a copy of " Initial Brief of ESC Brooke County Power 1 LLC " was served upon the following counsel of record as follows:

VIA HAND DELIVERY Linda Bouvette, Esquire Staff Attorney Public Service Commission of West Virginia 201 Brooks Street Charleston, West Virginia 25301 Counsel for Commission Staff

VIA U.S. MAIL POSTAGE PREPAID

Vincent M. Trivelli, Esquire The Law Office of Vincent Trivelli, PLLC 178 Chancery Row Morgantown, West Virginia 2650 1 Counsel for the WV State Building and Construction Trades Council, AFL-CIO

David A. Landman, Esquire Emily V. Danford, Esquire Nora K. Cook, Esquire Gregory J. Phillips, Esquire Robert E. Haffke Bensesch, Friedlander, Coplan & Aronoff LLP 200 Public Square Suite 2300 Cleveland, Ohio 44 1 14 Counsel for Ohio Valley Jobs Alliance

Keith D. Fisher, Esquire Spilman Thomas & Battle, PLLC 300 Kanawha Boulevard, East Charleston, WV 25301 Counsel for the WV Oil and Natural Gas Association

Joshua L. Jarrell, Esquire Wesley H. White, Esquire Deputy Secretary & General Counsel West Virginia Department of Commerce 1700 Kanawha Blvd., East State Capitol Building 3, Suite 600 Charleston, West Virginia 25555 Counsel for The West Virginia Department of Commerce

William E. Robinson, Esquire Kelby Thomas Gray, Esquire Dinsmore & Shohl, LLP P.O. Box 11887 Charleston, West Virginia 25339 Counsel for Ohio Valley Jobs Alliance

Lee F. Feinberg ( te Bar #1173)

VL4 €€AND DELIVERY Ms.

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