WEST VIRGINIA ENVIRONMENTAL QUALITY BOARD CHARLESTON, WEST VIRGINIA Jefferson County Foundation, Inc., et al., Appellants, v. Appeal No. 20-04-EQB Director, Division Of Water & Waste Management, West Virginia Department Of Environmental Protection, Appellee. MOTION TO INTERVENE Roxul USA, Inc. d/b/a ROCKWOOL moves the Environmental Quality Board for leave to intervene in the above-captioned appeal. In support of its motion, ROCKWOOL states: 1. This appeal challenges the City of Charles Town’s authority under West Virginia Department of Protection Order No. 9080 to continue construction of a sewer line extension along West Virginia Route 9 (the Route 9 Sewer Extension). 2. ROCKWOOL is relying on the Route 9 Sewer Extension to provide sewer service to a new $150+ million facility it is building in Ranson, West Virginia, for the manufacture of its stone wool insulation products. When complete, ROCKWOOL’s new facility will create 140- 150 high-paying jobs at full operating capacity. 3. ROCKWOOL is spending $1 million per week to build this facility. 4. To ensure that sewer service is available when its facility is ready to open, ROCKWOOL has agreed to finance the cost of the Route 9 Sewer Extension, subject to certain rights of reimbursement, under an Alternate Main Extension Agreement (AMEA) with the City. A copy of the AMEA is attached as Exhibit 1. 5. As part of the AMEA, ROCKWOOL agreed to escrow the entire $10.5 million estimated construction cost up front and to deposit such additional funds as needed to pay cost overruns. ROCKWOOL has also agreed to indemnify the City for certain liabilities or costs that arise in the course of designing, acquiring, constructing, and equipping the Route 9 Sewer Exten- sion. 6. “With the consent of the board and upon such terms and conditions as the board may prescribe, any person affected by the matter pending before the board may by petition inter- vene as a party appellant or appellee.”1 The financial commitments made by ROCKWOOL demonstrate that it would be significantly affected by the appeal of DEP Order 9080. 7. Under Rule 24(a)(1) of the West Virginia Rules of Civil Procedure, which gener- ally guide the appeals process before this Board,2 anyone may intervene in an appeal as of right when it has (1) “an interest relating to the property or transaction which is the subject of the ac- tion and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest” and (2) that interest is not ade- quately represented by the DEP. 3 8. Applications to intervene under this standard are judged by a four-part test: (1) the application must be timely; (2) the applicant must claim an interest relating to the property or transaction which is the subject of the action; (3) disposition of the action may, as a practical matter, impair or impede the applicant’s ability to protect that interest; and (4) the applicant must show that the interest will not be adequately represented by existing parties.4 9. ROCKWOOL satisfies each of this test’s four parts. 1 W. Va. Code 22B-1-7(e). 2 W. Va. C.S.R. § 46-4-6.13. 3 W. Va. R. Civ. P. 24(a)(1). 4 Syl. Pt. 2, in part, State ex rel. Ball v. Cummings, 208 W. Va. 393, 540 S.E.2d 917 (1999). 2 10. First, the Supreme Court of Appeals of West Virginia has held that an application was timely when filed approximately seven weeks after the initial pleading.5 Here, ROCK- WOOL has filed its application less than a week after the docketing of the appeal. 11. Second, ROCKWOOL claims an interest that is both direct, meaning that it will “either gain or lose by the direct legal operation and effect of the judgment,” and substantial, meaning that it is “capable of definition, protectable of some law, and specific to the interve- nor.”6 If successful, the appellants’ challenge will prohibit the City from continuing construction of the Route 9 Sewer Extension under the authority of DEP Order No. 9080. Not only will this delay the extension of sewer service to ROCKWOOL’s new facility—potentially delaying its ability to open—but ROCKWOOL will be financially responsible to the City for any associated cost runs and may even owe the City indemnity. 12. Third, as the entity financing the Route 9 Sewer Extension and relying on its completion for sewer service, ROCKWOOL “may be practically disadvantaged by the disposi- tion of the action” in its absence.7 Not only is ROCKWOOL financing the Route 9 Sewer Exten- sion, but it alone has an interest in construction being completed in time to support the planned opening of its new facility. Although this practical disadvantage must be weighed against the parties’ and public’s interest in efficient litigation,8 the gravity of harm to ROCKWOOL would be substantial, whereas any delay in resolving this appeal likely would be minimal and could be mitigated through case management orders. 13. Fourth, ROCKWOOL meets the minimal burden of showing that its interest “may not be adequately represented” because it alone has an interest in the cost and time impacts from 5 Id. at 399, 540 S.E.2d at 923. 6 Id. at 393, 540 S.E.2d at 917. 7 Id. at 401, 540 S.E.2d at 925 (emphasis in original). 8 Id. 3 this appeal.9 No one else is relying on the Route 9 Sewer Extension to be completed at a certain time or has agreed to bear the risk of additional costs if construction is stopped. 14. In sum, there are significant financial and operational consequences to ROCK- WOOL based on the resolution of this appeal, and the Board thus should apply the “liberal view toward allowing intervention.”10 WHEREFORE, for the foregoing reasons and those apparent to the Environmental Quality Board, ROCKWOOL respondent that the Board enter an Order granting it leave to inter- vene in this action as a party-appellee and granting such other relief as the Board deems just and proper. ROXUL USA, INC., d/b/a ROCKWOOL Joseph V. Schaeffer (WV Bar # 12088) SPILMAN THOMAS & BATTLE, PLLC 301 Grant Street, Suite 3440 Pittsburgh, PA 15219 Ph. 412.325.3303 Fax 412.325.3325 [email protected] James A. Walls (WV Bar # 5175) SPILMAN THOMAS & BATTLE, PLLC 48 Donley Street, Suite 800 Morgantown, WV 26501 Ph. 304.291.7947 Fax 304.291.7979 [email protected] David L. Yaussy (WV Bar # 4156) SPILMAN THOMAS & BATTLE, PLLC 300 Kanawha Boulevard, East Charleston, WV 25301 Ph. 304.340.3829 Fax 304.340.3801 [email protected] 9 Id. at 403, 540 S.E.2d at 927 (emphasis in original). 10 Id. at 404-05, 540 S.E.2d at 928-29. 4 WEST VIRGINIA ENVIRONMENTAL QUALITY BOARD CHARLESTON, WEST VIRGINIA Jefferson County Foundation, Inc., et al., Appellants, v. Appeal No. 20-04-EQB Director, Division Of Water & Waste Management, West Virginia Department Of Environmental Protection, Appellee. CERTIFICATE OF SERVICE I hereby certify that on the 6th day of April 2020, I caused the foregoing Motion to In- tervene to be served upon the following parties by United States mail, postage prepaid: Christopher P. Stroech, Esq. ARNOLD & BAILEY, PLLC 208 N. George Street Charles Town, WV 25414 WVDEP – Office of Legal Services 601 57th Street SE Charleston, WV 25304 WVDEP – Director, Division of Water and Waste Management 601 57th Street SE Charleston, WV 25304 City of Charles Town Attn: Charles Town Utility Board c/o Jane E. Arnett 661 S. George Street, Suite 101 Charles Town, WV 25414 Joseph V. Schaeffer (WV Bar # 12088) 12798388 5 EXHIBIT 1 ALTERNATE MAIN EXTENSION AGmEMENT for Rule 5.5.h.7 Mainline Extension 57- THIS AGREEMENT, made and entered into as of the& day of ,2020, by and between the CITY OF CHARLES TOWN, through the CHARLES TOWN UTILITY BOARD (“C’I7Jl”’) and ROXUL USA, INC. dba ROCKWOOL herein referred to as “Developer.” Collectively, CTUB and the Developer are referred to herein as the “Parties”, and singularly each a “Party”. WHERENS, the City of Charles Town (“City”), as authorized by the laws of the State of West Virginia (“State”) and the West Virginia Public Service Commission (“PSC”), owns a sanitary sewerage system consisting of wastewater treatment, pumping and collection facilities (collectively, as presently existing and including all fbture additions, betterments and improvements thereto, excluding, however, the Route 9 Sewer Line Extension and the Facilities as defined herein, the “C”B Sewer System”) providing sanitary sewage service to customers within the corporate boundaries of the City and the City of Ranson and a portion of the unincorporated areas of Jefferson County, West Virginia (collectively, the “CTUB Service Area”); and MERIEAS, pursuant to West Virginia law, the City, by Ordinance duly enacted, created CTUB and delegated to it the 111 and complete authority for the supervision, management, control and operation of the CTUB Sewer System, including the maintenance, operation, improvement and extension thereof, with the power vested in C”l3 to make all contracts, agreements and take all other actions necessary or proper for the full and complete supervision, management and control of the CTUB Sewer System; and WHERIEAS, CTUB has been authorized by the City and the PSC to develop wastewater treatment, pumping and collection facilities throughout the CTUB Service Area to provide the greatest number of area residents with public sanitary sewer service; and 1 make public wastewater facilities available to the ~eatest number of residents w Service Area as exp~tiouslyas possible; and WHEREAS, Developer is acquiring, constructing, and equipping a ~~ufac~ngfacility (the “Facility”) on an appr~x~ately130 acre parcel of real property, which comprises part of M area known as Jefferson , in the vicinity of West Virginia State Route 9, situated within the service area of CTUB (the “Site”); and sition, co~~ctionand equipping, and subs~u~toperation, of the Facility is ~nting~tupon the Facility having access to appropriate wastewater collection and treatment facilities at the Site; an WREAS, the Developer is willing to bear the expense of designing, acquiring, constructing and ~~pp~gthe ired sewer improvements hmthe Site to the ~ppro~~t~ portion of the CTUE Sewer Syst~(as more Mly described herein, the “Route 9 Sewer Line Extension” or “Project”).