Title 53 W. Va. C.S.R.

Public Energy Authority Public Energy Authority

Series 01 Establishment Of Fee Schedule And cost Allocations Applicable To The Issuance Of Bonds By The WV Public Energy Authority

W. Va. Code R. § 53-1-1 General

1.1. Scope. -- This rule include special notice and public hearing provisions and establishes the fee schedule and the allocation of costs applicable to the issuance of bonds by the West Virginia Public Energy Authority.

1.2. Authority. -- W. Va. Code '5D-1-5(11)

1.3. Filing Date. -- April 9, 1992

1.4. Effective Date. -- April 15, 1992

W. Va. Code R. § 53-1-2 Definitions

2.1. "Act" means the West Virginia Public Energy Authority Act compiled in W. Va. Code '5D-1-1 et seq.

2.2. "Applicant" means a person or entity which requests the Authority to issue bonds to obtain funds for the purpose of financing the cost of acquisition and construction of a qualified project or any additions, extensions or improvements thereto.

2.3. "Qualified project" means either a natural gas transmission project or an electric power project as defined in the Act and that has been approved by a vote of the Authority that such project is consistent with the purposes of the Act.

2.4. The terms "Authority", "Board", "bond", "construction", "cost", "electric power project", "governmental agency", "natural gas transmission project" and "person" shall have the meanings ascribed to them in the W. Va. Code '5D-1-3.

W. Va. Code R. § 53-1-3 Prerequisites to Authority's Approval of Bond Issue

3.1. Prior to consideration of the decision of the Board to issue bonds, the Board shall provide notice of a public hearing as follows:

3.1.1. At least thirty (30) days prior to the date the public hearing is to be held, the Board shall provide written notice to all members of the Legislature. A member of the Legislature may notify the Board that the member does not desire such notice; in such case, the Board is not required to notify that member.

3.1.2. At least thirty (30) days prior to the date the public hearing is to be held, the Board shall provide written notice to the county commission of each county within which the project is located.

3.1.3. At least thirty (30) days prior to the date the public hearing is to be held, the board shall provide written notice to the council of each municipality in each county within which the project is located.

3.1.4. During the two (2) successive weeks prior to the public hearing, the Board shall maintain a posted notice at the county seat of each county within which the project is located. Such notice may be posted at the county courthouse and additional notices may be placed at other locations within the county. Such additional notices shall be conspicuous for the members of the public to observe.

3.1.5. The Board shall cause a class II legal advertisement, in compliance with W. Va. Code '59-3-1 et seq., to be published.

3.1.5.a. The notice shall be published in such a manner that the publication area will contain each county within which the project is located. The notice may be required to be published in more than one publication.

3.1.5.b. The notice shall be published at least fourteen (14) days prior to the date of the public hearing, but in no event shall the notice be published more than twenty-one (21) days prior to the date of the public hearing.

3.2. Prior to any final decision of the Board to authorize the issuance of bonds, the Board shall hold a public hearing.

3.2.1. The Authority shall appoint a representative of the Authority knowledgeable about the project considered to conduct the public hearing.

3.2.1.a. The public may be present and submit written statements or oral testimony.

3.2.1.b. The public may question the Authority's representative.

3.2.1.c. All of the testimony and evidence received at the hearing and the responses of the representative to questions shall be recorded by stenographic notes and characters or by mechanical means.

3.2.2. The representative shall make a report of the public hearing. At a minimum, the report shall contain the written comments submitted and a transcription or oral testimony presented. In addition, a summation of the speaker's remarks and the Authority's response to the comments shall be included.

3.2.3. The report shall be made available for review by the public and within thirty (30) days following the public hearing, the report shall be provided to the following persons:

3.2.3.a. To any person making a written request to the Authority.

3.2.3.b. To all persons who received written notice of the public hearing.

3.2.3.c. To each member of the Board.

W. Va. Code R. § 53-1-4 Special Notice Requirements of Meetings at Which a Bond Issue will be Finally Considered

4.1. Any person desiring notice of a meeting of the Board regarding the issuance of bonds may make a written request to the Board to be notified of such meeting. the request should state which particular project the person has an interest.

4.2. In addition to the meeting notice requirements compiled in 53 CSR 2, Procedure for Providing Notice of Meetings, notice shall be provided in the following manner for all regular or special meetings at which a bond issue will be finally considered.

4.2.1. The Chair person shall cause a notice of the meeting to be published as a class II legal advertisement in compliance with W. Va. Code '59-3-1 et seq. The notice shall state the time, place and purpose of the meeting and the notice shall be published in each county in which the project is located.

4.2.2. The Chairperson shall cause a written notice of the meeting to be delivered by regular United States mail to any person who has previously made a request in accordance with section 4.1 of this rule. Such notice shall be sent in advance of the meeting so that the notice is delivered prior to the meeting date.

W. Va. Code R. § 53-1-5 Fees for the Issuance of Bonds

5.1. The Authority shall be entitled to receive fees for the issuance of bonds by the Authority to applicants to provide funds for financing the costs of qualified projects.

5.2. Initial fee -- Each applicant receiving funds from the Authority through issuance of bonds by the Authority shall pay to the Authority an initial fee.

5.2.1. The initial fee shall be calculated based on the total amount of the bonds issued in an amount equal to the following, including any fraction of a million dollars issued:

5.2.1.a. Six hundred dollars ($600) per million dollars ($1,000,000) issued for the first ten million dollars ($10,000,000) of an issue.

5.2.1.b. Three hundred seventy-five dollars ($375) issued in excess of the first ten million dollars ($10,000,000) of an issue.

5.2.2. The minimum initial fee shall be five thousand dollars ($5,000).

5.2.3. The initial fees shall be payable at the closing out of the proceeds of the bond issue.

5.3. Annual fees -- Each applicant receiving funds from the issuance of bonds by the Authority shall pay to the Authority an annual fee.

5.3.1. By the affirmative vote of a majority of the Board members, the Board shall set the amount of the annual fee.

5.3.2. In no event may the annual fee exceed an amount of 1/20th of 1% (1/20%) of the bonds outstanding for a particular issue.

5.3.3. The initial annual fee shall be payable at the time of the closing out of the proceeds of the bond issue.

5.3.4. Each subsequent annual fee shall be paid on the anniversary date of the respective bond issue, as calculated as of the date thirty (30) days immediately preceding said anniversary date.

5.3.5. The Authority may waive or reduce the annual fee upon written request by the recipient of the bond funds for good cause shown. Such waiver or reduction must be requested ninety (90) days prior to the due date of the payment of the fee.

W. Va. Code R. § 53-1-6 Allocation of Costs Applicable to Issuance of Bonds

6.1. All costs incurred by the Authority that can be directly attributed to a bond issue pending before the Authority shall be allocated to that bond issue and such costs shall be paid at the closing out of the proceeds of that bond issue. All such costs shall be in addition to the fees imposed and payable pursuant to the provisions of section 5 of this rule.

6.2. Without limiting in any manner the costs that can be allocated pursuant to section 6.1 of this rule, all legal and other professional fees incurred by the Authority that can be attributed to a bond issue shall be allocated to that bond issue and such legal and other professional fees shall be paid at the closing out of the proceeds of the bond issue. All such costs shall be in addition to the fees imposed and payable pursuant to the provisions of section 5 of this rule.

6.3. In the event that a bond issue is not consummated for any reason, whether by action of the Authority or otherwise, all costs incurred by the Authority that can be attributed to such bond issue, including any legal and other professional fees, shall be paid by the entity or entities, if any, that proposed for requested such bond issue.

W. Va. Code R. § 53-1-7 Amendment of Fee Schedule

7.1. The Authority may amend the fee schedule by the affirmative vote of a majority of the Board members and any such amendment shall be binding and applicable to all issues outstanding at the time of the effective date of the change and to all subsequent issues.

7.1.1. In no event may the annual fees imposed and payable pursuant to this rule exceed an applicant's proportionate share of the projected operating expenses of the Authority for the year of assessment.

7.1.2. In no event may the annual fee imposed and payable pursuant to the provisions of this rule exceed 1/20th of 1% of the bonds outstanding for a particular issue.

53CSR1

Series 02 Establishment Of Procedures For Giving Notice To Public And Media Of Meetings Of PEA

W. Va. Code R. § 53-2-1 General

1.1. Scope. -- This procedural rule establishes the procedures for giving notice to the public and media of meetings of the West Virginia Public Energy Authority.

1.2. Authority. -- W. Va. Code ''5D-1-5, 6-9A-3.

1.3. Filing Date. -- September 7, 1991

1.4. Effective Date. -- October 7, 1991

W. Va. Code R. § 53-2-2 Notice of Regular Meetings

2.1. Notice shall be provided in the following manner for all regular meetings except for any meeting at which a bond issue or eminent domain decision shall be considered by the Board.

2.1.1. The Chairperson of the Board shall cause to be filed in the Office of the Secretary of State for publication in the State Register a notice of each regular meeting of the Board. Each notice shall state the time, place and purpose of the meeting and shall be filed in a manner to allow each notice to appear in the State Register at least five (5) days prior to the date of the meeting.

2.1.2. The Chairperson shall cause a copy of the notice required by section 2.1.1 to be delivered to the Capitol press corps. The Chairperson may also send copies of the notice to any and all agencies, associations and persons that might be interested in such regular meeting.

2.1.3. In the event that there is a change in the information contained in the notice required by section 2.1.1, the Chairperson shall cause a revised notice to be filed in the Office of Secretary of State and copies to be delivered to the Capitol press corps and all other agencies, associations and persons that received the initial notice. The revised notice shall contain all of the information, as revised, regarding the time, place and purpose of the regular meeting.

W. Va. Code R. § 53-2-3 Notice of Special Meetings

3.1. Notice shall be provided in the following manner for all special meetings except for any meeting at which a bond issue or eminent domain decision shall be considered by the Board.

3.1.1. As soon as practicable after a special meeting of the Board has been properly called, the Chairperson of the Board shall cause to be filed in the Office of the Secretary of State for publication in the State Register a notice of the special meeting of the Board. Each notice shall state the time, place and purpose of the meeting and shall be filed in a manner to allow each notice to appear in the State Register at least five days prior to the date of the meeting.

3.1.2. The Chairperson shall cause a copy of the notice required by section 3.1.1 to be delivered to the Capitol press corps. The Chairperson may also send copies of the notice to any and all agencies, associations and persons that might be interested in such special meeting.

3.1.3. In the event that there is a change in the information contained in the notice required by section 3.1.1, the Chairperson shall cause a revised notice to be filed in the Office of Secretary of State and copies to be delivered to the Capitol press corps and all other agencies, associations and persons that received the initial notice. The revised notice shall contain all of the information, as revised, regarding the time, place and purpose of the special meeting.

W. Va. Code R. § 53-2-4 Notice of Emergency Meetings

4.1. In the event of an emergency requiring immediate official action, the Chairperson shall cause to be filed in the Office of the Secretary of State an emergency meeting notice at any time prior to the meeting. A copy of such notice shall also be delivered to the Capitol press corps. The emergency meeting notice shall state the time, place and purpose of the meeting and the facts and circumstances of the emergency.

W. Va. Code R. § 53-2-5 Notice Requirements of Meeting at Which Bond Issue will be Finally Considered

5.1. In addition to the notice provisions required by this rule, notice of all regular or special meetings at which a bond issue will be finally considered shall be provided in accordance with the provisions of 53 CSR 1, Rules and Procedure for the Issuance of Bonds, Establishment of Fee Schedule and Cost Allocations.

W. Va. Code R. § 53-2-6 Notice Requirements of Meeting at Which Exercise of Right of Eminent Domain will be Finally Considered

6.1. In addition to the notice provisions required by this rule, notice of all regular or special meetings at which the exercise of the right of eminent domain will be finally considered shall be provided in accordance with the provisions of 53 CSR 3, Rules and Procedures for the Exercise of the Powers of Eminent Domain for Qualified Projects.

53CSR2

Series 03 Rules And Procedures For The exercise Of The powers Of eminent domain For qualified projects

W. Va. Code R. § 53-3-1 General

1.1. Scope. -- This rule establishes the rules for the Public Energy Authority to exercise its powers of eminent domain/condemnation for qualified projects including special notice and public hearing provisions.

1.2. Authority. -- W. Va. Code '5D-1-5(14).

1.3. Filing Date. -- April 9, 1992

1.4. Effective Date. -- April 15, 1992

W. Va. Code R. § 53-3-2 Purpose

2.1. Purpose. -- the purpose of these regulations is to implement the procedure required for the Public Energy Authority to exercise the right of eminent domain/condemnation, in accordance with the following objectives: To ensure that owners of real property or interests in real property to be acquired for Public Energy Authority projects or public energy assisted projects are treated fairly and consistently, to encourage and expedite acquisition by agreements with such owners, to minimize litigation and to promote public confidence in the Public Energy Authority's land and right-of-way acquisition programs for its qualified projects. To provide the public and persons interested or effected by the decisions of the Board of the Public Energy Authority with respect to property or right-of-way acquisition, the ability to comment and provide input in the decision making process through public hearings and public notice of the Board's meetings and to provide notice of such meetings to state, county and municiple officials.

W. Va. Code R. § 53-3-3 Definitions

3.1. "Acquiring entity" means the Authority or any entity which has a project qualified by the Authority as consistent with the Authority's statutory authority and purpose.

3.2. "Act" means the West Virginia Public Energy Authority Act compiled in W. Va. Code '5D-1-1 et seq.

3.3. "Agency" means the Public Energy Authority or entity which under the auspices of the Public Energy Authority acquires real property, right-of-ways or easements.

3.4. "Appraisal" means a written statement independently and impartially prepared by a qualified appraiser setting forth an opinion of defined value of the adequately described property as of a specific date, supported by the presentation and analysis of relevant market information. An appraisal shall be performed using the principles contained in the "Uniform Appraisal Standards for Federal Land Acquisitions" published under the auspices of the Interagency Land Acquisition Conference, United States Government Printing Office, 1972.

3.5. "Fair market value" means the appraised value as determined by an appraisal made by an independent person or firm chosen by the Authority.

3.6. "Qualified project" means either a natural gas transmission project or an electric power project as defined in the Act and that has been approved by a vote of the Authority that such project is consistent with the purposes of the Act.

3.7. "Real property" means lands, structures, franchises and interests in land, including lands under water and riparian rights, and any and all other things and rights usually included within the term real property and includes any and all interests in such property less than full title (fee simple), such as easements, right-of-ways, uses, leases, licenses and all other incorporeal hereditaments and every estate, interest or right, legal or equitable, including terms for years and liens thereon by way of judgements, mortgages or otherwise, and also all claims for damages for such real estate.

3.8. The terms "Authority", "Board", "bond", "construction", "cost", "electric power project", "governmental agency", "natural gas transmission project", "owner", and "person" shall have the meanings ascribed to them in the W. Va. Code '5D-1-3.

W. Va. Code R. § 53-3-4 Notices to Property Owners and Record Keeping

4.1. Each notice which the acquiring entity is required to provide to a proper owner or occupant under these regulations shall be personally served or sent by certified or registered first class mail, return receipt requested, and documented in the acquiring entity's files. Each notice shall be written in plain, understandable language. Persons who are unable to read and understand the notice must be provided with appropriate translation and counseling. Each notice shall state the name and telephone number of a person who may be contacted for answers to questions or other needed assistance.

4.2. The acquiring entity shall maintain adequate records of its acquisition activities in sufficient detail to demonstrate compliance with these regulations. The records shall be retained for at least three (3) years after each owner of real property or interest therein receives the final payment to which he or she is entitled under these regulations. The record keeping requirements of these regulations apply to the acquisition of a life estate or life use, acquisition by leasing, including options(s) for extension, acquisition of right-of-ways or easements and whether the acquisition is temporary or permanent.

4.3. The acquiring entity shall make every reasonable effort to acquire the real property or interest therein expeditiously by negotiations. In all instances, the acquiring entity shall make all reasonable efforts to properly, fairly and justly represent the interests of the Authority and the State of West Virginia in its acquisition endeavors.

W. Va. Code R. § 53-3-5 Criteria for Appraisals

5.1. A detailed appraisal shall be prepared for all acquisitions. An appraisal shall contain sufficient documentation, including valuation data and the appraiser's analysis of that data, to support his or her opinion of value. At a minimum, the appraisal shall contain the following items:

5.1.1. The purpose and function of the appraisal, a definition of the estate being appraised and a statement of the assumptions and limiting conditions affecting the appraisal.

5.1.2. An adequate description of the physical characteristics of the property being appraised, a statement of the known and observed encumbrances, if any, title information, location, zoning, present use, an analysis of the highest and best use, and at least a five (5) year sales history of the property.

5.1.3. All relevant and reliable approaches to value consistent with commonly accepted professional appraisal practices. When sufficient market sales data are available to reliably support the fair market value for the specific appraisal problem encountered, the acquiring entity may require only the market approach. If more than one approach is utilized, there shall be an analysis and reconciliation of approaches to value that are sufficient to support the appraiser's opinion of value.

5.1.4. A description of comparable sales, if any, including a description of all relevant physical, legal and economic factors such as parties to the transaction, source and method of financing and verification by a party involved in the transaction.

5.1.5. A statement of the value of the real property to be acquired and, for a partial acquisition, a statement of the value of the damages and benefits, if any, to the remaining real property.

5.1.6. The effective date of valuation, date of appraisal, signature and certification of the appraiser.

5.2. To the extent permitted by applicable law, the appraiser shall disregard any decrease or increase in the fair market value of the real property caused by the project for which the property is to be acquired, or by the likelihood that the property would be acquired for the project, other than due to physical deterioration within the reasonable control of the owner.

5.3. If the owner of a real property improvement is permitted to retain if for removal from the project site, the amount to be offered for the interest in real property to be acquired shall not be less than the difference between the amount determined to be just compensation for the owner's entire interest in the real property and the salvage value of the retained improvements.

5.4. No appraiser shall have any interest, direct or indirect, in the real property being appraised for the acquiring entity. Compensation for making an appraisal shall not be based on the amount of the valuation. No appraiser may act as negotiator for real property or interests in real property which the person has appraised.

W. Va. Code R. § 53-3-6 Application for Authority's Approval of Eminent Domain Power

6.1. Any acquiring entity may request the Authority to exercise the Authority's right of eminent domain/condemnation for a qualified project by filing a written request with the Board.

6.2. The acquiring entity must present the following evidence to the Board:

6.2.1. That the real property, right-of-way or easement proposed to be acquired is necessary for the finalization of the project and that alternative routes for the project have been reviewed and are not financially or physically consistent with the interest and purposes of the project.

6.2.2. A description and location identification of the proposed real property, right-of-way or easement to be acquired and the owners and interests of each in the same.

6.2.3. An identification of the buildings, structures, or other improvements, including removable building equipment and trade fixtures, which are considered to be part of the real property, right-of-way or easement for which the offer of just compensation has been made.

6.2.4. The amount that the acquiring entity has established as just compensation for the real property, right-of-way or easement. The amount shall not be less than the approved appraisal of the fair market value of the property, taking into account the value of the allowable damages or benefits to any remaining property.

6.2.5. That all reasonable efforts have been made to reach a fair and reasonable accommodation between the acquiring entity and the owner including a listing of all offers, counteroffers and refusals.

6.2.6. Documentation of the initial written purchase offer and documentation that the owner has been given a written statement by the acquiring entity. Such statement shall include:

6.2.6.a. A statement of the amount offered as just compensation. In the case of partial acquisition, the compensation for the real property, right-of-way or easement to be acquired and the compensation for damages, if any, to the remaining real property, which shall be stated separately.

6.2.6.b. A description and location identification of the real property and the interest in the real property to be acquired.

6.2.6.c. An identification of the buildings, structures and other improvements, including reasonable building equipment and trade fixtures, which are considered to part of the real property for which the offer of just compensation is made. Where appropriate, the statement shall identify and separately held ownership interest in the property, e.g., a tenant-owned improvement, and indicate that such interest is not covered by the offer.

6.2.6.d. Any update or subsequent offer of just compensation with appropriate documentation that the offer has been considered and rejected as impracticable.

6.3. If the information presented by the owner or a material change in the character or condition of the property indicates the need for new appraisal information, or if a significant delay occurred since the time of the appraisal(s) of the property, the acquiring entity shall have the appraisal(s) updated or obtain new appraisal(s). If the latest appraisal information indicates that a change in the purchase offer is warranted, the acquiring entity shall promptly re-establish just compensation and offer that amount to the owner in writing.

W. Va. Code R. § 53-3-7 Approval of Acquiring Entity's Application

7.1. The Board may approve or deny an acquiring entity's application for the Board to proceed with consideration of the Board's exercise of the right of eminent domain. Upon the affirmative vote of a majority of all of the members of the Board, the Board may grant approval to continue consideration of the acquiring entity's request if the Board shall be fully and completely satisfied:

7.1.1. The the project is one approved by the Board as consistent with the purposes of the Act;

7.1.2. That all reasonable efforts have been made to acquire the real property or interest in real property by the acquiring entity without success;

7.1.3. That there are no reasonable alternatives which are economically or physically consistent with the best interests of the qualified project; and

7.1.4. That any further attempts at negotiations between the acquiring entity and the owners may jeopardize the timely completion of the qualified project.

W. Va. Code R. § 53-3-8 Prerequisites to Authority's Approval of Eminent Domain Power

8.1. The Authority shall prepare a written statement of the following:

8.1.1. A statement of the nature of the proposed project.

8.1.2. A summary of the data supporting the Board's determination to continue to consider the exercise of the right of eminent domain with regard to particular project.

8.1.3. A description and location identification of the proposed real property, right-of-way or easement to be acquired.

8.1.4. The environmental impact statement of assessment required pursuant to W. Va. Code '5D-1-5(34).

8.2. During the two (2) successive weeks prior to the public hearing required pursuant to section 8.4, the Board shall make available to the public the information required by section 8.1 by placing the information with the county clerk at the courthouse of each county in which the project is located.

8.3. Prior to consideration of the decision of the Board to exercise the right of eminent domain, the Board shall provide notice of a public hearing as follows:

8.3.1. At least thirty (30) days prior to the date the public hearing is to be held, the Board shall provide written notice to all members of the Legislature. A member of the Legislature may notify the Board that the member does not desire such notice; in such case, the Board is not required to notify that member.

8.3.2. At least thirty (30) days prior to the date the pubic hearing is to be held, the Board shall provide written notice to the county commission of each county within which the project is located.

8.3.3. At least thirty (30) days prior to the date the public hearing is to be held, the Board shall provide written notice to the council of each municipality in each county within which the project is located.

8.3.4. During the two (2) successive weeks prior to the public hearing, the Board shall maintain a posted notice at the county seat of each county within which the project is located. Such notice may be posted at the county courthouse and additional notices may be placed at other locations within the county. Such additional notices shall be conspicuous for the members of the public to observe.

8.3.5. The Board shall cause a class II legal advertisement in compliance with W. Va. Code '59-3-1 et seq. to be published.

8.3.5.a. The notice shall be published in such a manner that the publication area will contain each county within which the project is located. The notice may be required to be published in more than one (1) publication.

8.3.5.b. The notice shall be published at least fourteen (14) days prior to the date of the public hearing, but in no event shall the notice be published more than twenty-one (21) days prior to the date of the public hearing.

8.4. Prior to an final decision of the Board to authorize the exercise of the right of eminent domain, the Board shall hold a public hearing.

8.4.1. The Authority shall appoint a representative of the Authority knowledgeable about the project considered to conduct the public hearing.

8.4.1.a. The public may be present and submit written statements or oral testimony.

8.4.1.b. The public may question the Authority's representative.

8.4.1.c. All of the testimony and evidence received at the hearing and the responses of the representative to questions shall be recorded by stenographic notes and characters or by mechanical means.

8.4.2. The representative shall make a report of the public hearing. At a minimum, the report shall contain the written comments submitted and a transcription of oral testimony presented. In addition, a summation of the speakers' remarks and the Authority's response to the comments shall be included.

8.4.3. The report shall be made available for review by the public, and within thirty (30) days following the public hearing, the report shall be provided to the following persons:

8.4.3.a. To any person making a written request to the Authority.

8.4.3.b. To all persons who received written notice of the public hearing.

8.4.3.c. To each member of the Board.

W. Va. Code R. § 53-3-9 Special Notice of Meetings at Which the Exercise of Eminent Domain will be Finally Considered

9.1. Any person desiring notice of a meeting of the Board regarding its exercise of the right of eminent domain may make a written request to the Board to be notified of such meeting. The request should state which particular project the person has an interest.

9.2. In addition to the meeting notice requirements compiled in 53 CSR 2, Procedure for Providing Notice of Meetings, notice shall be provided in the following manner for all regular or special meetings at which the exercise of the right of eminent domain will be finally considered.

9.2.1. The Chairperson shall cause a notice of the meeting to be published as a class II legal advertisement in compliance with W. Va. Code '59-3-1 et seq. The notice shall state the time, place and purpose of the meeting and the notice shall be published in each county in which the project is located.

9.2.2. The Chairperson shall cause a written notice of the meeting to be delivered by regular United States mail to any person who has previously made a request in accordance with section 9.1. Such notice shall be sent in advance of the meeting so that the notice is delivered prior to the meeting date.

W. Va. Code R. § 53-3-10 Exercising the Right of Eminent Domain

10.1. The Authority may exercise its right of eminent domain only after the acquiring entity has complied with this rule, and upon the affirmative vote of a majority of all of the members of the Board.

10.2. The Authority may exercise the right of eminent domain only in a manner consistent with the provisions of the West Virginia Constitution Article III, '9 and in accordance with the applicable provisions of W. Va. Code ''5D-1-1 et seq., 54-1-1 et seq., 54-2-1 et seq. and 54-3-1 et seq.

53CSR3

Series 04 Rules And procedure For application For And environmental assessment Of projects seeking qualifications For PEA's Assistance

W. Va. Code R. § 53-4-1 General

1.1. Scope. -- This rule includes special notice and public hearing provisions and establishes cost allocations for application and environmental assessment of proposed projects seeking assistance from the Public Energy Authority.

1.2. Authority. -- W. Va. Code '5D-1-5(34)

1.3. Filing Date. -- June 10, 1993

1.4. Effective Date. -- June 10, 1993

W. Va. Code R. § 53-4-2 Purpose

2.1. Purpose. -- The purpose of this regulation is to establish the Authority's application and review process including assessment of the effects of applicant project upon the environment. These regulations are promulgated to implement the application procedure required by the Authority for all proposed projects which seek financial or other assistance from the agency. The regulations are designed to insure compliance with all state and federal regulations relative to the environment applicable to any proposed project and that each application be subject to a public hearing in one of the counties in which the project will be located. The regulation further states that projects which are required under federal law to submit an environmental impact statement under the National Environmental Policy Act of 1969, as amended, may submit such environmental impact statement in lieu of the environmental assessment requirements of this regulation. Further the regulation provides that any individual or entity filing an application for qualification as a qualified project shall pay all costs incurred by the PEA related to the application process.

W. Va. Code R. § 53-4-3 Definitions

W. Va. Code R. § 53-4-4 Application and Environmental Assessment for Authority's Assistance

4.1. Any applicant for the Public Energy Authority assistance for any proposed project qualified for consideration under the Public Energy Act of 1985, as amended, shall file an application with the Authority in the form prescribed by the Authority: Provided, however that any project which is required under federal law to submit an environmental impact statement under the National Environmental Policy Act of 1969, as amended, may submit such environmental impact statement in lieu of the environmental assessment requirements of this regulation. The application shall include the following information:

a. An inventory of existing environmental conditions at the proposed project site and the immediate area which will address the requirements of subsection "b" hereof. The term "project site" shall be construed to include, in addition to the physical site of the project itself, all appurtenances to the same, including but not limited to highways, rail lines, electric transmission lines, natural gas pipelines, water and/or sewer lines or other utilities to or from the project, and other areas which will be modified, improved, disturbed or affected by the project, and are collectively referred to as, "the facilities".

b. A complete description of the proposed project including: (a) its purpose, size, use, location, cost, production capacity and routes of existing or proposed highways, rail lines, electric transmission lines or gas pipelines, and (b) the methods of construction.

c. Identification of the real property, right of way or easement to be acquired.

d. A list of all licenses, permits or other approvals required by any governmental units.

e. Detailed information as to the need for the project and facts concerning alternative sites considered by the project.

f. An assessment of the probable effects of the proposed project upon the natural environment of the area, its scenic or natural beauty, rare or irreplaceable natural resources or unique historic sites.

g. Plans for minimizing any adverse environmental effects.

h. An evaluation of the demand for the project's production, the total number of employees anticipated both during construction and upon full operation.

W. Va. Code R. § 53-4-5 Notice to Public in Counties in Which Project Located

Upon receipt of an application, the Authority shall have a copy of such application available for public inspection at the office of the county clerk at the county courthouse of and at least one public library in each county in which the proposed project will be located.

W. Va. Code R. § 53-4-6 Request for Supplemental Information or Data

6.1. After initial review by the Authority with the assistance of the relevant governmental agencies or departments, the Authority may require specific information to supplement the initial application. Upon request for such additional information, the Authority shall require its submission within such reasonable time as may be determined by the Authority.

W. Va. Code R. § 53-4-7 Review by Counsel and Assistance of Appropriate Governmental Agencies

7.1. Upon receipt of the initial application, the PEA with the assistance of its general counsel and all other appropriate governmental departments and agencies shall insure that the proposed project:

a. Conforms with and meets all applicable air, water, noise and solid waste laws of the State as determined by issuance of permits, certifications or other evidence of approval in writing by the appropriate state and federal agencies or departments with jurisdiction over these laws;

b. Conforms with the State development plan, if such plan has been lawfully approved and adopted as evidenced by a certification or approval in writing by such agency or office charged with oversight of such plan(s).

W. Va. Code R. § 53-4-8 Public Hearing on Application

8.1. Not more than ninety (90) days after application is completed, the Authority shall hold at least on (1) public hearing in one (1) of the counties in which the facility or any part of it is situated to solicit the views of the public about the proposed project. Prior to the hearing the Authority shall make the application available to the public. In addition, any comments on the application by the Authority or any other state department, any proposed permits to be issued by any state agency or department to the applicant including any conditions proposed by such agency or department prior to granting such permits, and any other pertinent information shall be made available to the public prior to hearing. The Authority shall provide notice of the public hearing on the application in accordance with W. Va. Code '5F-1-5b (1990) and the Authority's regulations on notice and public hearings.

W. Va. Code R. § 53-4-9 Criterion for Approval of Proposed Project's Application

9.1. Not more than ninety (90) days after the public hearing is completed, the Authority shall issue its final decision on the project's application. In reaching a decision, the Authority shall consider whether:

a. The proposed project evidences fewer undesirable environmental, economic and cultural consequences in the specific proposed location of the project and the proposed location of its highways, rail lines, electric transmission lines or natural gas pipelines route than alternative specific locations; and b. Whether the proposed project would have a positive and beneficial effect upon the economy and employment.

53CSR4

Series 05 Rule to Petition the Public Energy Authority for Approval of Decommissioning or Deconstruction Activities Related to Any Coal, Oil, or Natural Gas Fueled Power Plant

W. Va. Code R. § 53-5-1 General

1.1. Scope -- The following rule governs the petitioning of the Public Energy Authority for approval of decommissioning or deconstruction activities for any coal, oil, or natural gas fueled power plant and sets forth the requirements and administrative procedure for that process.

1.2. Authority -- W. Va. Code § 5D-1-5c(c).

1.3. Filing Date -- June 17, 2024

1.4. Effective Date – June 17, 2024

1.5. Sunset Provision – This rule shall terminate and have no further force or effect on August 1, 2029.

W. Va. Code R. § 53-5-2 Definitions

2.1. “Alternative fuel source” means a source of fuel other than coal, oil, or natural gas; Provided, that current coal plants may consider natural gas an alternative fuel.

2.2. “Authority” means the West Virginia Public Energy Authority, as established in W. Va. Code §5D-1-1 et seq.

2.3. “Chair” means the Chair of the West Virginia Public Energy Authority.

2.4. “Decommissioning activities” means any activity that removes from service or facilitates, furthers, or otherwise prepares for the removal from service, any coal, oil, or natural gas fueled power plant.

2.4.1. “Decommissioning activities” does not include any regulatory action before the Public Service Commission of West Virginia (“PSC”) or the PJM Interconnection initiated by the Petitioner in anticipation of filing a Petition under this rule.

2.5. “Deconstruction activities” means any activity to dismantle, disassemble, or to reduce a coal, oil, or natural gas fueled power plant into its constituent parts such that the plant is no longer able to generate electricity.

2.5.1. “Deconstruction activities” does not include any regulatory action before the PSC or the PJM Interconnection initiated by the Petitioner in anticipation of filing a Petition under this rule.

2.6. “Facility” means the coal, oil, or natural gas fueled power plant that is the subject of the Petition pursuant to W.Va. Code §5D-1-5c, including the parcel of real property upon which the Facility is located, and all other structures, attachments, fixtures, improvements, or personal property, whether above-ground or below-ground, used by the Facility.

2.7. “Generating unit” means a generator and its excitation system which converts primary energy into electric energy.

2.8. “Green technologies” means technologies that emphasize low carbon emissions.

2.9. “Non-producing” means a power plant that is not generating electricity for local or regional grids.

2.10. “Novel technologies” means new and different technologies not currently used by the Facility, including unprecedented combinations of existing technologies.

2.11. “Owner” means the person(s) or entity having title to the Facility

2.12. “Operators” means the person(s) or entity having responsibility for the day-to-day operations of the Facility.

2.13. “Petitioner” means the Owner(s) of the Facility and the person(s) or entity seeking approval for decommissioning or deconstruction activities.

2.14. “PJM Interconnection or PJM” means the regional transmission organization that coordinates the movement of wholesale electricity in all or parts of Delaware, Illinois, Indiana, Kentucky, Maryland, Michigan, New Jersey, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia, West Virginia, and the District of Columbia.

2.15. “PSC” means the Public Service Commission of West Virginia, as established in W. Va. Code §24-1-1 et seq.

2.16. “Third-party evaluator” means the person selected by Petitioner, and approved by the Authority, to conduct an independent and unbiased analysis of Petitioner’s request for decommissioning or deconstruction activities.

2.17. “Unreasonably withheld” means to withhold, arbitrarily and capriciously, the approval of decommissioning or deconstruction activities without consideration or regard for the facts and circumstances presented.

2.18. “Utility” means any person or persons, or association of persons, however associated, whether incorporated or not, including municipalities, distributing or selling electric energy for light, heat, power, or other purposes, which are now or may hereafter be held to be a public service.

W. Va. Code R. § 53-5-3 Eligibility to petition for decommissioning or deconstruction activities; Exempt from rule

3.1. Petitioners shall meet the following requirements prior to petitioning the Authority for approval to undertake decommissioning or deconstruction activities:

3.1.1. If Petitioner is a utility, regulated by the PSC, it shall first obtain approval from the PSC on Petitioner’s planned decommissioning or deconstruction activities, in accordance with W. Va. Code §24-1-1 et seq., W. Va. Code §24-2-5, and W. Va. Code §24-2-21a(a).

3.1.2. If the Facility is connected to the PJM Interconnection, Petitioner shall obtain a deactivation analysis in compliance with PJM Manual 14D, Section 9: Generator Deactivations.

3.1.3. The Facility shall be in material compliance with all applicable local, state, and federal regulations.

3.1.4. Petitioner provides notice to the West Virginia Department of Environmental Protection (“DEP”) of its intent to undertake decommissioning or deconstruction activities and requests from the DEP a pre-closure inspection to identify areas of concern.

3.2. Any coal, oil, or natural gas fueled power plants that have been non-producing prior to March 6, 2018, are exempt from this rule.

W. Va. Code R. § 53-5-4 Notice

4.1. Petitioners shall file a Notice of Decommissioning or Deconstruction Activities (“Notice”) with the Authority prior to Petitioning for approval of decommissioning or deconstruction activities.

4.2. The Notice shall include:

4.2.1. The name and physical address of the Facility.

4.2.2. The name, address, and telephone number of each owner and operator of the Facility.

4.2.3. The nameplate statistics for the Facility, including the fuel source, capacity, net capacity factor, and carbon emissions.

4.2.4. The PSC’s order approving decommissioning or deconstruction activities, if applicable.

4.2.5. The Deactivation Analysis performed by PJM, if applicable.

4.2.6. A summary of the proposed decommissioning or deconstruction activities and the commencement date of those activities.

4.2.7. A statement explaining the need for decommissioning or deconstruction activities.

4.2.8. The Facility’s estimated life-expectancy when it was constructed, and the Facility’s estimated life-expectancy as of the date of the Petition.

4.2.9. The name, address, and telephone number of the proposed third-party evaluator.

4.2.9.a. Petitioners shall include supporting justifications for their selection of the third-party evaluator, including but not limited to experience, industry qualifications, and professional associations.

4.3. One paper copy and one electronic PDF version of the Notice shall be filed with the Authority, in addition to the requirements set forth in subsections 6.1., 6.2., 6.3., and 6.4. of this rule.

4.4. The Authority shall review the proposed third-party evaluator upon receipt of Petitioner’s Notice and Certification of Service and will determine whether the third-party evaluator has the experience and qualifications to conduct an objective, quantitative and qualitative analysis.

4.4.1. The third-party evaluator should be capable of performing an analysis of the size and scope outlined in this rule, capable of distilling large amounts of data and information, and capable of communicating the findings of the analysis clearly.

4.4.2. If the Authority denies the Petitioner’s choice of third-party evaluator, the Petitioner shall have thirty (30) days from the denial to propose another third-party evaluator for approval by the Authority.

4.4.3. If the Authority approves the Petitioner’s choice of third-party evaluator, the Petitioner shall have one hundred eighty (180) days from the issuance of the approval of the Petitioner’s third-party evaluator to submit the Petition, and Petitioners may request additional time upon good cause shown.

W. Va. Code R. § 53-5-5 Petition Requirements

5.1. Each petition shall include the following minimum requirements:

5.1.1. An analysis by the third-party evaluator that evaluates, through objective quantitative and qualitative analysis, the social impact the decommissioning or deconstruction activities will have at a local and statewide level, including, but not limited to:

5.1.1.a. Other potential uses of the Facility, including the implementation of novel and green technologies or alternative fuel sources within the Facility.

5.1.1.b. Any actions to be taken by the Petitioner to prevent the Facility from becoming a nuisance or safety concern to the local community.

5.1.1.c. The impact on the local community’s ability to support and maintain existing residents and businesses.

5.1.1.d. Any actions already taken by the Petitioner to offset any anticipated social impacts.

5.1.2. An analysis by the third-party evaluator that evaluates, through objective quantitative and qualitative analysis, the environmental impact the decommissioning or deconstruction activities will have at a local and statewide level, including, but not limited to:

5.1.2.a. All entities that are currently liable for the Facility’s environmental liabilities.

5.1.2.b. Whether the Facility is following all applicable terms and conditions of its Title V operating permit pursuant to W. Va. CSR §45-30-6, including the payment of fees pursuant to W. Va. CSR §45-30-8.

5.1.2.c. The number, size, and location of all ash ponds, embankments, or impoundments used by the Facility.

5.1.2.d. Whether there has been any settlement, movement, erosion, seepage, leakage, cracking, or other deterioration of any Facility ash pond, embankment, or impoundment.

5.1.2.e. Any analysis of the hazard potential resulting from the failure or breach of any Facility ash pond, embankment, or impoundment.

5.1.2.f. Whether, and in what amount, there are currently pollutants, chemicals, or other hazardous materials stored or located within the Facility.

5.1.2.g. Whether there has been any soil or groundwater contamination resulting from the release or discharge of any pollutants, chemicals, or other hazardous material from the Facility.

5.1.2.h. Any actions taken by the Petitioner to offset any anticipated environmental impacts resulting from the decommissioning or deconstruction activities.

5.1.3. An analysis by the third-party evaluator that evaluates, through objective quantitative and qualitative analysis, the economic impact the decommissioning or deconstruction activities will have at a local and statewide level, including, but not limited to:

5.1.3.a. The anticipated job loss at the Facility.

5.1.3.b. The anticipated job loss for vendors and other businesses providing goods and services to the Facility.

5.1.3.c. The impact on revenues for school districts and local, county, and state governments.

5.1.3.d. The amount of coal, oil, or natural gas used annually by the Facility for the previous five (5) years.

5.1.3.e. The amount of severance tax paid annually to the State of West Virginia for the coal, oil, and natural gas used by the Facility for the previous five (5) years.

5.1.3.f. Any actions taken by the Petitioner to offset any of the anticipated economic impacts.

5.1.4. A detailed explanation of the funds Petitioner currently has set aside, committed, and available to complete the decommissioning or deconstruction activities, including:

5.1.4.a. The amount of funds set aside, committed, and available.

5.1.4.b. Whether Petitioner has secured contingency financing in the event the total cost of decommission or deconstruction of the Facility exceeds the amount of funds set aside by Petitioner.

5.2. A petition shall also include, attached as exhibits:

5.2.1. A copy of the third-party evaluator’s analysis; Provided the analysis may be summarized in the Petition itself.

5.2.2. Copies of all federal, state, or local permits pertaining to the Facility that are applicable and in effect as of the date the Petition was filed.

5.2.3. Copies of all Certificates of Convenience and Necessity, if any, granted to the Facility from any federal, state, or local governmental entity.

5.2.4. Copies of all Certificates of Approval or Authorization for the Facility, including for any of its ash ponds, embankments, or impoundments, issued by any federal, state, or local governmental agency.

5.2.5. A certified survey or plat of the Facility identifying:

5.2.5.a. The perimeter of the real property of the Facility.

5.2.5.b. Cooling towers.

5.2.5.c. Chimney stacks.

5.2.5.d. Generating units.

5.2.5.e. Ash ponds, embankments, and impoundments.

5.2.5.f. Transmission lines.

5.2.5.g. Railroad tracks.

5.2.5.h. Barge loading and unloading facilities.

5.2.5.i. Natural gas or oil pipelines.

5.2.5.j. Above-ground storage tanks.

5.2.5.k. Below-ground storage tanks.

5.2.5.l. Coal stockpiles.

5.2.5.m. Coal conveyors.

5.2.5.n. Electrical transformers.

5.2.5.o. Areas where chemicals, pollutants, or other hazardous materials are stored, located, or have been discharged.

5.2.5.p. Any other improvement, attachment, fixture, or structure, whether above-ground or below-ground, necessary for the operation of the Facility.

5.2.6. A detailed description of the planned decommissioning or deconstruction activities to be performed at the Facility, including, but not limited to:

5.2.6.a. Planned decommissioning or deconstruction activities and whether those activities will be performed by the Owner, Operator, or third-party.

5.2.6.b. Waste processing, storage, and disposal activities, including the removal of hazardous waste from the Facility.

5.2.6.c. Site security, surveillance, and maintenance activities, including the provision of security and surveillance services; the erection of fences, access gates, and intrusion detection systems; and routine maintenance, grounds keeping activities, road upkeep, and flood controls.

5.2.6.d. Site restoration and environmental remediation activities, which shall include the removal and remediation of all ash ponds, embankments, or impoundments, the removal of contaminated soil or groundwater, reclamation to prevent erosion, and the placement of permanent markers to identify buried foundations, pipelines, or conduit.

5.2.6.e. A cost estimate for the completion of the decommissioning or deconstruction activities of the Facility, including an itemization of the estimated cost of compliance with each of the individual activities listed in 5.2.6. and an estimated timeline for the completion of each of the activities listed in 5.2.6.

5.2.7. Copies of all federal, state, and local safety and environmental inspection reports, findings, violations, and notices for the previous five (5) years.

5.2.8. Copies of all currently binding, pending, or unresolved consent orders, orders of compliance, citations, violations, or penalties issued to the Facility by any federal, state, or local governmental entity.

5.2.9. Copies of the most current and accurate appraisal of the Facility.

5.2.10. A detailed list of the upgrades made to the Facility since its original construction, including, but not limited to, the purpose of the upgrade, the date the upgrade was completed, and the cost of the completed upgrade.

5.3. Without prior approval from the Authority, a petition shall not exceed 20 pages, not including attached exhibits listed in section 5.2. of this rule.

5.3.1. Text exceeding the 20 page limit will not be considered.

5.3.2. Petitions shall be signed and verified by the Petitioner and third-party evaluator.

5.3.3. One paper copy and one electronic PDF version of the Petition shall be filed with the Authority.

W. Va. Code R. § 53-5-6 Format and filing requirements

6.1. These format requirements apply to all Notices, Petitions, and Public Comments.

6.1.1. All filings shall be double spaced.

6.1.2. All filings shall be in 12-point, Times New Roman font.

6.1.3. All filings shall be justified and use 1-inch margins.

6.2. All Notices and Petitions shall be filed with the Authority via hand delivery or mail service to: Chairman of the Public Energy Authority, 1900 Kanawha Boulevard East, Building 3, Suite 800, Charleston, WV 25305.

6.3. A paper copy or electronic PDF version of all Notices shall also be served upon:

6.3.1. The mayor of the city, town, or village where the Facility is located.

6.3.2. The county commission where the Facility is located.

6.3.3. The West Virginia State Tax Commissioner.

6.3.4. The Chairman of the West Virginia Public Service Commission.

6.3.5. The Director of the Public Energy Authority.

6.3.6. The Executive Director of the Office of Energy.

6.4. Certification of service to the entities listed in section 6.3 of this rule shall be attached to the Notice filed with the Authority.

6.4.1. A signed written statement certifying service is sufficient to satisfy this requirement.

6.5. The format requirements in section 6.1. of this rule do not apply to exhibits attached to the Petition or Public Comments submitted electronically.

W. Va. Code R. § 53-5-7 Public comment

7.1. A public comment period shall be a part of the petition process.

7.2. All public comments shall be filed within thirty (30) days of the date the Petition was published on the Authority’s website.

7.3. Public comments may be filed by any interested person but shall prominently identify and be signed by the comment’s proponent.

7.4. Public Comments shall relate only to the social, environmental, and economic impact of decommissioning or deconstruction activities.

7.5. Public Comments may be filed in the same manner as Notices and Petitions, as set forth in section 6.2. of this rule, or Public Comments may be filed electronically on the Authority's website.

7.5.1. For Public Comments filed under section 6.2. of this rule, one (1) copy of the Public Comment shall be filed with the Authority.

7.6. Petitioner’s will be provided with a copy of all public comments received and may file written responses to any of the public comments within thirty (30) days of receipt of the comments.

W. Va. Code R. § 53-5-8 Approval or denial of the Petition

8.1. Prior to the Authority rendering its decision on the Petition, the Chair may request additional information from the Petitioner, any person or entity served a copy of the Notice under section 6.3. of this rule, or any other person or entity the Chair believes may have interest, information, or expertise related to the Petition.

8.1.1. The Chair shall request additional information on the Authority’s behalf, including seeking an outside review of information submitted in the Petition.

8.1.2. The Authority’s request for additional information will be published on the Authority’s website.

8.1.3. The Petitioner is entitled to receive a copy of the additional information requested by the Authority, and the Petitioner may file a written response within thirty (30) days of receipt of the information.

8.1.4. The Authority shall make a decision on the Petition within one year after the submission of the Petition.

8.2. The Authority will approve the Petition if, in the Authority’s discretion, based on the facts and circumstances presented in the Petition and the public comments, it would be unreasonable to withhold approval of the proposed decommissioning or deconstruction activities.

8.2.1. The decommissioning or deconstruction activities shall be carried out in compliance with the decommissioning or deconstruction plan submitted to the Authority.

8.3. If the Authority, in its discretion, denies the Petition, the Petitioner is entitled to resubmit the Petition within ninety (90) days to address the problems identified by the Authority without having to provide notice as required by section four of this rule; provided that petitions not resubmitted within ninety (90) days of denial must start the petition process from the beginning.

8.3.1. If the Authority, after considering the facts and circumstances presented in the Petition, denies the Petition, it will explain the reasons for its decision and why approval of decommissioning or deconstruction activities was not unreasonably withheld.

W. Va. Code R. § 53-5-9 Public document

9.1. All documents filed with the Authority for purposes governed by this rule are public documents, and Petitions will be published on the Authority’s website.

9.2. A Petitioner may redact or withhold any confidential or proprietary information that the Petitioner cannot legally disclose. The Petitioner shall include with the petition a letter generally describing the nature of the information redacted or withheld and the legal justification for the redaction or withholding of the information.

9.2.1. The Authority may determine in executive session what additional information is exempt from public disclosure under the West Virginia Freedom of Information Act and may make any additional redactions prior to publishing the Petition on the Authority’s website.

W. Va. Code R. § 53-5-10 Appeals

10.1. All proceedings in the appeal of the Authority’s actions concerning a Petition or the proceedings therefore, and any judicial review thereof, shall be conducted in accordance with the provisions of §29A-5-1 et seq. of this code and any procedural rules adopted pursuant thereto.