Citizen groups challenge secrecy and pollution concerns in Tucker County data center air permit decision

By Sarah Elbeshbishi | Mountain State Spotlight

This article was originally published by Mountain State Spotlight, whose mission is to help West Virginians improve our state by producing “sustained outrage” journalism that exposes abuses of power by government, business, and other institutions. You can make a donation here, or sign up for their newsletters here.

Braving an early, frigid morning, Peyton Levi and Kyra Wilson joined a cluster of citizens protesting outside the state Department of Environmental Protection headquarters.

The two Marshall University seniors joined the group of nearly 30, holding up signs opposing the data center complex proposed between the towns of Thomas and Davis. The project has garnered backlash from communities across West Virginia.  

“I’m tired of seeing West Virginia as an extraction state,” said Wilson, a creative writing major from Wayne County.

Inside the agency’s headquarters, a seven-member board was preparing to hear initial legal motions in a case brought by three citizen groups trying to block the Tucker County project. 

Here’s what West Virginians need to know. 

Why are the citizen groups appealing the permit? 

When it applied for a state air pollution permit for a natural gas plant to power its data center, Fundamental Data, LLC, asked the WVDEP to keep several lengthy sections of its application secret. 

Citizen groups objected, saying the information kept confidential included material they needed to determine how the company calculated the expected air emissions.

The WVDEP allowed the information to be kept confidential, and in August, approved the permit. The next month, Tucker United, West Virginia Highlands Conservancy and the Sierra Club appealed the agency’s decision to the West Virginia Air Quality Board, a quasi-judicial panel that hears such matters. 

The citizens are ultimately asking the panel to revoke the air permit. They list more than a dozen specific objections, most importantly challenging the DEP designating the project as a “minor” pollution source. The citizens contend that the power plant should be considered a larger air pollution emitter and be subject to more stringent regulations.

But the citizen groups are also seeking the release of the confidential information. The secrecy makes it “impossible for the public to review, check, verify, or understand these emissions calculations,” the groups stated in their appeal.

What happened at the first air board hearing?

While protesters stood outside the building during the November hearing, the Air Quality Board considered the citizen groups’ request for access to information WVDEP withheld from the permit application.

Fundamental Data has cited trade secrets as the reason for omitting sections of their application. And, according to the state agency, the company has met the state’s business confidentiality standard. 

“The agency is required by state law to evaluate those claims, and the WVDEP conducted a full legal and technical review before determining which materials met the criteria,” said DEP spokesperson Terry Fletcher. 

The agency also made sure that any information needed to determine emissions was publicly available through nonconfidential alternatives, Fletcher added.

The company, through the protective order, has agreed to share a portion of the redacted information with Mike Becher, the attorney representing the citizens, and Dr. Ranajit Sahu, their expert witness. But the redacted information will remain concealed from the public. 

While the citizens made progress in getting access to the hidden information, the board threw out two of the 17 issues raised by the citizen groups.  

The seven-member panel granted WVDEP’s request to dismiss the groups’ complaints that the agency didn’t consider air emissions from other sources like truck traffic and that the project is meant to power a data center complex.  

The board refused to throw out the groups’ challenge to the project’s “minor” pollution source designation out of hand. That issue, which the state agency raised in its motion, will be taken up during the next hearing. 

What’s next?

Starting on Dec. 3, the air board will hear testimony on the merits of the citizens’ appeal. 

The parties will call witnesses to testify on the matter. The WVDEP said they will make the engineers who were involved with drafting, reviewing and issuing the air permit available to testify. The citizen groups say they have an expert to review the calculations in the permit. The company’s attorney said that they don’t plan to call any witnesses but will cross examine witnesses. 

Why does this matter?

As developers propose — and political leaders back — large data center complexes in Tucker, Mason and Mingo counties, those communities have grown frustrated about the lack of transparency. 

And that frustration has also spread to other West Virginians.

“There’s just very little information out there. It’s almost like it’s a done deal before people even find out about it,” said Charleston resident Norma Heim, who joined the rally at the WVDEP building. “I feel like the people should have had and should still have a voice in this.”

So far, all the air permit applications submitted to the WVDEP for such projects have been heavily blacked out, hiding information from the public, and communities have struggled to get information to address their concerns. 

Earlier this year, Gov. Patrick Morrisey asked the Legislature to pass HB 2014 to encourage data center projects. That bill, which passed into law, also stripped away local communities’ ability to restrict noise, lighting, or land use from such projects. Now, this appeals process is one of the few avenues left to challenge these projects. 

Drew Galang, a spokesperson for Morrisey, called the legislation “transformative” allowing West Virginia to “attract the industries of tomorrow.” He also said that the bill is designed to benefit the entire state. The tax revenue will go toward infrastructure improvements, essential services, future economic development investments and lowering the income tax, Galang added. 

Despite not living in Tucker County, the prospect of a data center complex being built between Davis and Thomas is personal for Heim. Like generations of West Virginians, she grew up visiting the Canaan Valley and Blackwater Falls each year. 

“It’s part of our blood,” said Heim. “There’s so few places like West Virginia that are just special, that have the kind of resources and beauty. And I just feel like this is just taking us down a road we don’t want to go.” 

Reach reporter Sarah Elbeshbishi at sarah@mountainstatespotlight.org