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  • February 9, 2021

The Jefferson County Foundation v. WVDEP and Rockwool case that challenges Rockwool’s Construction Stormwater permit, due to resume this Thursday, has been postponed again. Thursday’s hearing was supposed to complete the hearing that started on December 11 and 12 but which was continued into January at the request of the DEP so they could complete the certified record.

What is the certified record?

By law DEP must produce a complete, or certified, record that includes all documents and correspondence in the agency’s files relating to the appeal. And they need to do it within 14 days of receiving the notice of appeal.  Jefferson County Foundation filed the appeal on March 26, 2020.

That was almost a year ago.

The Environmental Quality Board (EQB) gave the DEP an extension due to COVID until May 2020. The DEP produced some materials in June 2020 but they have never been even close to complete. In fact, DEP initially produced the record for the wrong permit application. And the DEP has still not produced a complete record, even two days before the last scheduled days of the hearing. This morning, the DEP’s counsel contacted our counsel and advised that they would try to get it complete by tomorrow (day before the hearing) but were not sure they could. He further advised that there was new information in the record that we had not seen before, and that this information included communications between Rockwool and the DEP. This is obviously information that we need to know before we continue the hearing, and should have known last May.

These new documents go to the ultimate question in the case: why did the DEP allow Rockwool to build on karst without appropriate protection for our region’s water?

Even though this is all incredibly frustrating, we cannot push into the hearing without seeing the information in the complete record, so we did not oppose DEP’s request for a continuance. The hearing will now be March 18 and 19. We will keep you updated. 

  • January 29, 2021

Today, the Jefferson County Foundation filed its response to the West Virginia Economic Development Authority’s (WVEDA) attempt to dismiss the Foundation’s challenge of the WVEDA’s plan to give Rockwool a break from property taxes for up to 10 years and up to $150 million in bonds for Rockwool’s benefit. 

Read the response.

Jefferson County Foundation’s response to Motion to Dismiss from WVEDA and RockwoolDownload

The Foundation brought the WVEDA’s plan to our community’s attention in September of 2019 after surfacing information about it via the Foundation’s FOIA requests.  Our legal action against the WVEDA challenges the constitutionality and legality of the tax exemption that the WVEDA is attempting to provide Rockwool.  

The next step in the proceeding is for the Circuit Court judge in Charleston to rule on the motions to dismiss our challenge that the WVEDA and Rockwool have filed to protect the tax relief scheme. The Foundation has requested oral argument and looks forward to the opportunity to explain to the court why such tax breaks violate the Constitution’s requirement for fair and equal taxation while subsidizing certain companies at the expense of the state’s taxpayers.

About PILOT Agreements

For more information about PILOT (Payment in Lieu of Taxes) agreements, please see here.

  • November 25, 2020

The Environmental Quality Board (EQB) inappropriately decided that Jefferson County Foundation’s appeal of order 9080—which allowed the City of Charles Town (CTUB) to construct the super sewer to Rockwool WITHOUT a valid permit (and over 700 other entities)—was moot. On November 25, the Foundation filed an appeal of this decision to the Kanawha County Circuit Court.

Every challenge presents an opportunity to affect change. This case in particular is another step to make the DEP and the EQB follow the law. The DEP cannot be allowed to utilize enforcement orders to permit entities to sidestep the Clean Water Act and the EQB cannot just turn a blind eye to what’s right because it’s the easy way out. We stand up to such tactics because it’s the right thing to do. And we will every time.

We got to this place of dysregulation because the people did not hold the government to account. We have to now hold the line and never give up.

  • October 30, 2020

On October 29, the Environmental Quality Board heard arguments on the pre-trial motions in the Jefferson County Foundation v. WVDEP and Rockwool case challenging Rockwool’s Construction Stormwater permit. Rockwool’s five motions asked the Board to preclude evidence and decide nearly all of the case before evidence is heard. After hearing arguments and reviewing the motions, the Board found IN FAVOR of JEFFERSON COUNTY FOUNDATION and DENIED Rockwool’s motions. The evidentiary hearing is set for November 12 and 13, 2020.

  • June 25, 2020

Ranson has decided to continue the hearing on a different date. They did vote on June 23 as reported from several sources. However, they will not act on this vote. They will hear the remainder of the speakers at a different time and then vote again. They are going to allow members of the public to speak who were not able to tell it was their turn. This meeting will be on the Tuesday, June 30 at 7:00 p.m.

Jefferson County Foundation would like to thank Billie Garde, our in-house lawyer and board member, for all of her hard work on this into the late night last night and this morning. Your leadership and dedication are inspiring and we are all grateful!

HOLD THE LINE!

Help us keep up the fight. Donate (tax deductible) today.

  • March 26, 2020

Today, Jefferson County Foundation filed an appeal of Rockwool’s Construction Stormwater permit registration with the West Virginia Environmental Quality Board. The Foundation is standing up for the protection of the ground and surface water resources in Jefferson County and the surrounding region.

Read the appeal.

The DEP has allowed Rockwool to operate on this original permit from its first issuance on October 19, 2017 until February 25, 2020. Several times, the DEP neglected to require Rockwool to apply for and obtain a re-registration despite significant modifications to the permit, including increased limit of disturbance, grading beyond one year, and significant modification to the permit by addition of a sinkhole remediation plan. By doing so, the DEP eliminated every opportunity the public had to give input on and point out the inadequacies of this permit to protect our vulnerable groundwater resources. This has allowed Rockwool to construct for over two years without correcting these major errors in its stormwater design.

Red line shows limit of disturbance. Yellow highlighted area shows high risk area for sinkholes.

DEP’s initial review of Rockwool’s Construction Stormwater permit application was insufficient and left our water resources vulnerable to contamination during construction and in the years to come. Rockwool failed to provide adequate and accurate information in their application allowing them to avoid public notice and public comment in October 2017 on this original permit. Specifically, they did not follow the requirement for reporting their limit of disturbance; they reported it as 98.9 acres and failed to include the acreage from the common plan of development as is required in the permit conditions.

Zoomed in image shows sinkholes in areas within the limit of disturbance, which are mostly located where the large ponds are on the property as shown in the drone photo above.

All projects over 100 acres are required to go to public notice and public comment. Rockwool claimed the construction of their plant would only require 24 weeks (recall they started on November 1, 2017 and is still not complete!). All projects with grading lasting greater than one year require public notice and public comment. By misreporting and misrepresenting this information, Rockwool was able to avoid public notice in more ways than one in Fall 2017. Had they had public notice, we may have been aware of this project prior to the sneaky publication of the air permit notice the day before Thanksgiving in 2017, and we may have been looking for it, giving us the opportunity to challenge it at the time. Furthermore, it strains credulity to think the DEP did not realize that these two parameters were drastically underreported. The DEP should have required the limit of disturbance include the common plan of development and should have required public notice and public comment in October 2017.

The Foundation is pursuing every available means to correct this situation and protect the vulnerable groundwater resources in Jefferson County and surrounding region.

Thank you to all that have donated in support of our legal fight against Rockwool. If you would like to contribute, please go to bit.ly/33yxyKc

  • March 13, 2020

Leading constitutional scholar leads Jefferson County taxpayers challenge to tax forgiveness scheme that illegally favors Denmark-based multinational over other West Virginia taxpayers

Citing clear language in the West Virginia State Constitution in its support, Jefferson County Foundation sent notice that its intends to file suit in Kanawha County Circuit Court to block the state from illegally exempting Rockwool from real and personal taxes on a proposed industrial facility in Jefferson County.

Download Jefferson County Foundation’s Complaint (.pdf)

West Virginia University Law School Professor Robert M. Bastress filed the complaint along with co-counsel law firms Arnold & Bailey, PLLC and DiPeiro, Simmons, McGinley & Bastress PLLC. A noted constitutional law authority, Professor Bastress has litigated and written extensively on the history and meaning of the state constitution and is the author of The West Virginia State Constitution (Oxford University Press, 2016).

On May 2, 2019, the West Virginia Economic Development Authority (WVEDA) authorized the issuance of up to $150 million in lease revenue bonds for a term of up to 10 years, during which the WVEDA would hold title to Rockwool’s Jefferson Orchards property which includes approximately 130 acres of land. Jefferson County Foundation’s complaint alleges that the arrangement violates Article X, Section 1 of the West Virginia Constitution since WVEDA’s interest in the Jefferson Orchards property would be exempt from ad valorem taxes, and as a result, Rockwool would not have to pay the same real and property taxes as other individual and business taxpayers in the state.

WVEDA’s May 2019 action in Charleston took place even as the Circuit Court in Jefferson County was considering a challenge to a similar tax-relief scheme using a so-called Payment In Lieu of Taxes (PILOT) agreement involving Rockwool, the Jefferson County Development Authority, and other county and local and state government entities. In August 2019, the court ruled the PILOT agreement to be invalid without having to reach the issue of its constitutionality.

“West Virginia’s constitution is clear in its requirement that ‘taxation shall be equal and uniform’ and the WVEDA’s action equally clearly violates it,” observed Professor Bastress. Co-counsel Christopher Stroech of Arnold & Bailey added, “this case presents an ideal opportunity to confirm and clarify the scope of the Constitution’s tax uniformity clause, especially in light of the invalidation of the Rockwool PILOT agreement on other grounds.”

Dr. Christine Wimer, president of Jefferson County Foundation, commented that “individual taxpayers, like me, as well as long-time West Virginia businesses who aren’t getting these lucrative tax breaks, are treated unfairly and unequally when the WVEDA abuses its power this way.” She continued, “Jefferson County’s location in the Eastern Panhandle combined with a well-educated workforce and robust local economy means that such tax breaks are not only unfair and unconstitutional, they are not needed to attract employers and investment. They also unnecessarily drain money from public services such as schools, infrastructure, and emergency services.”

Jefferson County Foundation’s complaint asks for the invalidation of the WVEDA’s May 2 action including cancellation of plans for any government agency to take title of the Rockwool property.

The complaint can be found here.

  • January 12, 2020

Jefferson County Foundation is challenging attempts to weaken water protection for our water resources.

Control of runoff from construction sites and industrial installations is governed by the federal government under the National Pollutant Discharge Elimination System (NPDES) program. States can obtain authorization from the Environmental Protection Agency (EPA) to administer the NPDES program in their state through a process defined by the Clean Water Act (CWA). West Virginia Department of Environmental Protection (WVDEP) has this authorization. The WVDEP administers the NPDES program in West Virginia through general or statewide permits. These permits cover general operations such as construction and general industrial operations with standardized rules and requirement. These General permits must be renewed with the EPA every five years.

Individual operations and projects, such as Rockwool, must demonstrate that they are qualified to operate under these general permits. They must have registration under a general stormwater permit or an individual stormwater permit to operate.

Every five years, the general permits are revised by the WVDEP undergoes public comment, and is ultimately re-evaluated and approved by the EPA. Once the EPA has approved the Statewide Permit, then all entities wanting a storm water multi-sector permit apply to the WVDEP and are judged against and approved under the General Permit. A General Multi-Sector Stormwater Permit was approved was due to be renewed/re-applied for in 2018. This process was completed and a permit was issued by the WVDEP on September 12, 2019 and went into effect on October 12, 2019.

However, the Builders Supply Association of West Virginia argued that the permit was too onerous and would have been too burdensome on the companies and appealed this permit to the West Virginia Environmental Quality Board (EQB). The EQB is the administrative oversight entity for the WVDEP.

Jefferson County Foundation, with eight citizen co-interveners, asked to Intervene in this appeal on December 4, 2019. If our motion is accepted, this will allow us to conduct discovery prior to and participate in the evidentiary hearing. This will allow us to fight to keep the protections for our water resources in the permit.

In late December, the Builders Supply Association of West Virginia opposed our motion to intervene asking that our motion be denied. This past week, we filed a reply, arguing that their reasoning was incorrect. We are now waiting for the EQB to decide rule on our motion.

If you would like to assist in this fight and the rest of the ongoing legal fight against Rockwool please donate on our website or mail a check to Jefferson County Foundation, Inc., PO Box 460, Ranson, WV 25438