September 7, 2006
West Virginia

PSC to reconsider Liberty Gap wind project

By Anne Adams “¢ Staff Writer

CHARLESTON, W.Va. – Despite hundreds of letters supporting the West Virginia Public Service Commission’s July 24 decision to dismiss Liberty Gap LLC’s application for the Jack Mountain wind utility, the PSC decided last week to give the company another chance.

Liberty Gap, a subsidiary of U.S. Wind Force, seeks a state siting certificate for a 50-turbine industrial wind facility along several miles of Jack Mountain, abutting the border with Virginia’s Highland County, along with a 200 kilovolt transmission line to carry the power to a substation in Franklin.

In its latest order, the PSC is granting Liberty Gap’s petition for reconsideration under certain conditions.

Eve Firor, spokesperson for intervenor Friends of Beautiful Pendleton County, told the Recorder this week the group “was not surprised at the PSC’s decision and we will continue to do everything in our power to protect the ridge tops and the people of Pendleton County.”

The PSC had dismissed the application on the grounds that Liberty Gap had submitted a “patently unreasonable draft release” to FOBPC, an intervenor in the case opposed to the project, which effectively denied the group access to the project area for a site visit.

July 31, Liberty Gap filed a petition for reconsideration, saying it believed the PSC had misunderstood the company’s reasons for denying access to FOBPC’s experts and consultants. In its petition, Liberty Gap said it was willing to extend the statutory deadline for PSC’s final decision on the certificate 60 days, remove the “gross negligence” language from its access release, and pay travel costs associated with FOBPC’s consultants.

Liberty Gap had said the project site was dangerous, and that its own staff had only limited access. The property is owned by Allegheny Wood Products, and Liberty Gap’s contract for lease stipulates limited access.

Liberty Gap’s chief operating officer Thomas Matthews had stated in an affidavit that dismissing the utility application would have a devastating financial effect on his company.

The company’s offers, it said, should address the PSC’s concerns that Liberty Gap had eliminated the possibility of full litigation of the issues involved.

The PSC’s order said, “Liberty Gap noted that all the parties have invested significant resources in preparing for a hearing on this application, in addition to Liberty Gap’s payment of the $62,500 filing fee “¦ Liberty Gap argued that the West Virginia Supreme Court of Appeals makes no practical, legal, distinction between the terms “˜negligence’ and “˜gross negligence’ in a release. Liberty Gap’s intention was simply to protect itself and its landlord, Allegheny Wood Products, from liability to the maximum extent.”

Liberty Gap had apologized for anything it had done that contributed to the PSC’s “misunderstanding” of its intentions regarding the release and site access.

FOBPC filed a response to the petition for reconsideration Aug. 8, saying Liberty Gap’s grounds for reconsideration were without merit, the order explained, and urged the PSC to extend the decision 90 to 120 days and order Liberty Gap to pay the group’s attorney fees.

“While Liberty Gap has the resources to engage in lengthy litigation, the citizens groups do not,” FOBPC argued. “A second (extension) is likely to invite Liberty Gap to introduce more collateral issues upon which the intervenors will be forced to expend more valuable and scarce resources.”

Intervenors Larry and Rebecca Thomas also filed a response to Liberty Gap’s petition, asking the PSC to deny reconsideration. The PSC’s order notes, “The Thomases interpreted Liberty Gap’s promises regarding future site access to indicate that Liberty Gap still intends to control the study area and thereby the study results. In response to Liberty Gap’s mention of rattlesnakes on the property, the Thomases noted that rattlesnake populations are diminished “¦ (and) asserted that Liberty Gap misunderstands the impact of its arrogant actions and behavior. They cited the manner in which a public meeting was conducted in February 2006, and argued that Liberty Gap’s repeated mantra that it wishes to be a good corporate neighbor is not supported by its actions.”

Nevertheless, the PSC reinstated the case on certain conditions:
“¢ Liberty Gap is to file a statement confirming its agreement to extend the decision period by 120 days, until March 16, 2007.
“¢ Liberty Gap is to pay the travel expenses, including lodging, for FOBPC consultants to travel to Pendleton County and conduct a site visit, as the company offered to do.
“¢ Liberty Gap is to revise the release as described in its petition for reconsideration.
“¢ Liberty Gap is to finalize site visit arrangements with FOBPC consultants by a certain date.

The PSC stated, “These conditions will remedy the Commission’s concern that Liberty Gap’s actions prevented the presentation of relevant information to the commission at hearing.” However, it noted, “While the commission is not reversing its determination that Liberty Gap’s conduct preceding dismissal was unreasonable, the commission concludes that by meeting the above conditions, the harm caused by Liberty Gap’s conduct will be mitigated to the point that a fair litigation of the application can occur. In view of the considerable resources expended by all parties to date in this case, the case should proceed to a decision on the merits, provided the conditions above are met.”

The PSC said it does not have the authority or jurisdiction to make Liberty Gap pay for FOBPC’s attorney fees.

The state agency decided to extend the decision period to 120 days, saying the 60 days suggested by Liberty Gap wasn’t enough. The PSC attaches to its order a condition that Liberty Gap must file a statement agreeing to the extension period within 10 days of the PSC’s order.
The PSC set a new procedural schedule for the case as follows:
“¢ Oct. 13 – FOBPC site visit to have been completed
“¢ Nov. 14 – Intervenors’ supplemental direct testimony filing date
“¢ Nov. 27 – Staff direct and rebuttal testimony filing date
“¢ Dec. 4 – Applicant and intervenors’ (except staff) rebuttal of staff and cross-rebuttal of other intervenors
“¢ Dec. 12 – Hearing beginning at 9:30 a.m. in Charleston. The hearing will continue on consecutive days if necessary. The commission will also take public comment at the beginning of the hearing.

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