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  • 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.

Charleston WV from bridge
  • February 2, 2020

Jefferson County Foundation Submits a Petition to the WVDEP

On Sunday, January 26, Jefferson County Foundation submitted a petition to Secretary Caperton of the West Virginia Department of Environmental Protection (WVDEP), asking that he require Rockwool to apply for and obtain an individual NPDES permit rather than a registration under the general industrial permit. This will allow better provisions and oversight to be added into the permit to protect the water resources of Jefferson County, Northern Virginia, Maryland, and the Chesapeake Bay. See the petition and exhibits on the documents page of our website.

Charleston Meetings

Jefferson County Foundation, with technical experts, met with senior government officials of the WVDEP on Monday, January 27, and shared our concerns with the stormwater construction, stormwater industrial and the air permits. Foundation president Chrissy Wimer joined members from JCV, EPGC, and Citizen Scientists in meeting with Delegate Paul Espinosa and the DEP during the E-Day activities in Charleston on January 28. The meeting with Espinosa was disappointing, but illuminating. While he said he was in favor of local control of development, he would not condemn the state driven WVEDA $150M bond agreement that usurped the desire of the local people and local development authority. He defended Rockwool, his employer, and denied that process water would be stored in the Rainwater for Reuse pond, but after showing him the site plan that clearly showed the storage, he conceded that some process water goes into the rainwater for reuse pond. He did not have any opinion or knowledge about the multiple house bills with environmental impact; in fact, he said he had not reviewed any of them.

Plumbing Plans

Through the FOIA, Jefferson County Foundation has obtained more up-to-date plumbing plans from the Charles Town City Council. Unfortunately, these plans still do not show where the samples for CTUB will be taken or the industrial effluent that will go to CTUB. Alarmingly, it still shows process water from inside buildings going to the rainwater for reuse pond. Please plan to attend the CTCC sewer workshop on February 12, which will feature Rockwool explaining to the CTCC and its experts the various risks to the Charles Town water treatment facility from Rockwool’s operations.

Millville Quarry Air Permit Update

Over 250 public comments were submitted to the WVDEP on the newest Millville Quarry temporary air permit through the Jefferson County Foundation website. It seems these public comments are already having an effect. Millville has requested to have their R13-3434T temporary permit (previous temporary permit) “retired.” On  January 10, a DEP inspection was done to verify that the equipment associated with that permit had been removed from the site. Check out the Foundation’s public comment and recent communications between DEP and the Millville Quarry on the Documents page of our website. 

  • 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

Community Forum on Rockwool Full House
  • January 5, 2020

On January 3, 2020, Jefferson County Foundation hosted a Community Forum on Rockwool at Storer Ballroom, Shepherd University. The at-capacity crowd heard local scientists present their concerns regarding the Rockwool facility’s air and water permits and apparent design deficiencies. 

Click the video link below to watch the proceedings.

If you are interested in supporting the educational and legal work of the Foundation, please go to our donations page to make a fully tax deductible donation. Those interested in keeping in touch for further updates and news about upcoming events can sign up here. Also, check out ways you can make a difference now.

  • December 18, 2019

On Friday, January 3, Jefferson County Foundation welcomes the community to learn what you need to know about Rockwool as we start 2020. Join your community to learn how heavy industry like Rockwool may affect our economy, our natural resources, and our health.

Date: Friday, January 3, 2020
Start Time: 6:00 p.m. (Free pizza while supplies last)
Location: Storer Ballroom, Student Center, 210 N. King Street, Shepherd University, Shepherdstown, WV

Check out the event listing on our Facebook page.

Frequently Asked Questions

Q:  What time is the Community Forum?
A:  We will start at 6pm and likely will conclude by 8pm.

Q: What will be covered at this event?
A: Presenters will share information on key issues, including:
Air Permits
Stormwater Permits
Sewer
Design Deficiencies

Q:  Where can I park?
A:  You can park in the Shepherd University parking lots after 6pm and on the nearby streets. 

Q:  Will there be government officials at the Community Forum?
A:  Yes, we expect some government official will attend to hear the informative presentations.

Q: I can’t attend on January 3. Where can I get information?
A: Please email us and we will send you an update from the Community Forum and share other updates on this important topic.

Q:  What is Jefferson County Foundation?
A:  Find out more about us.

West Virginia Supreme Court
  • November 26, 2019

Jefferson County Foundation (JCF) is proud to support Jefferson County Vision (JCV), who has filed its final brief before the West Virginia Supreme Court of Appeals in its case against the Public Service Commission (PSC) challenging the PSC granting the Jefferson Utilities, Inc., (JUI), an emergency construction permit in 2018 allowing them to proceed with construction without the need for a hearing or public intervention. Despite the fact that the PSC staff recommended a public hearing, the PSC refused to grant one citing that the Jefferson County Development Authority (JCDA) funding for the water line fell through in response to significant public outcry.

Rockwool argues that the case is moot because the water line is already built. However, the JUI-Rockwool deal is not a “done deal.” Ownership of the line does not transfer from Rockwool to JUI until after, but “no later than 90 days after completion of Phase 2” – or at least the end of April 2020. The brief states:

“[t]his Court should not concede the case is moot based simply on the fact that the water line is built. If this is acceptable, any private company, with the blessing of the Commission, can seek approvals of a project despite not following the proper process…By the time complainants can raise issues before this Court, the project is built and either the Commission or the company can claim the issues are moot. This would be dangerous precedent.”

In short, we have asked the Supreme Court to consider whether the PSC should have allowed JUI to proceed when there was so much unknown and unknowable at the time the alleged emergency grant of the certificate was provided:

“There is something inherently wrong with a situation where the certificated project has morphed into a situation where the utility is no longer building the project, the customer is; the quantified state funding no longer exists; the estimated costs of the project have significantly increased; the utility agrees to reimburse the customer its costs whatever they turn out to be; the water demand of the only identified customer has gone down; and the utility will own the facility with the obligation to make all future maintenance, repairs, replacement and extensions where there may be insufficient revenue; the utility provided no notice to the Commission of these significant changes; and, then whether it was brought to its attention, the Commission refused to reopen the certificate case and address the merits of the complaint.”

As JCF President Dr. Christine Wimer states, “if JUI/Rockwool’s argument is allowed to stand and the case is dismissed because the project is now built, this sets a dangerous precedent that strips the public of their ability to stand up for their critical role in the process and will lead to further abuse of the system by such companies who don’t wish to hear the public’s input.”

  • November 23, 2019

Jens Birgersson, CEO of Rockwool, stated in an investor’s call this morning that their proposed West Virginia plant “… is moving ahead now. No obstacles to that.” Unfortunately, Birgersson neglected to inform the analysts on the call that funding for their sewer is still being litigated, and that their stormwater permits with the West Virginia Department of Environmental Protection have yet to be approved and face great public opposition. These are among the obstacles still standing in the way of Rockwool finishing their build.

One of the analysts asked a question about Rockwool’s proposed plant in France. Birgersson stated, “there’s a bit of a different approach here. We buy land and here we are just doing the permitting, eh, we do that homework so that we know that it’s possible, get ready, but we have not taken a decision yet to build the plant.” In other words, Rockwool acknowledges that they are taking a “different approach” in France where they are seeking their permits first before they invest a lot of money in construction. Instead of using this thoughtful approach here in West Virginia, Rockwool is seeking to use the amount of money they have invested thus far in construction as leverage to drive their still-unapproved permits through. Why? Is it because West Virginia seems to have more lax permitting processes? Is it because they get less pushback from state officials? Does this seem like the actions of a responsible corporate actor?

Birgersson also boasted about his company’s “good profitability.” Why, if this is the case, does this company need state-backed loans for this project? It sure seems eager to take advantage of certain public officials’ willingness to use our state’s coffers to its favor.

Don’t be fooled, Jefferson County. For a company that tries to portray itself as a good neighbor, Rockwool’s statements to its key constituency—its investors—shows that its primary motivation is profit at the expense of our environment and community. Their continued efforts to buy public favor in our community with small gifts for photo opportunities is really just about the photo op, not about the people this plant will affect.

Bottom line, in West Virginia the community’s opposition to this project is not retreating and it is having an impact. Just consider the impact that continued delays and added litigation and other expenses must be having—and will have–on Rockwool’s financials (its free cash flow was down 37 million euros from 3Q 2018 to 3Q 2019) and ultimately its reputation. There are plenty of ways we can still affect change, at the very least by insisting on modern protective technology and strict compliance with laws.  We will continue to shine a light on the facts and to demand that our local and state representatives follow the law and represent the will of the people.