PUBLIC SERVICE COMMISSION
OF WEST VIRGINIA
CHARLESTON
At a session of the PUBLIC SERVICE COMMISSION OF WEST VIRGINIA in
the City of Charleston on the 29'h day of September 2017.

CASE NO. 17-0521-E-CS
ESC BROOKE COUNTY POWER I, LLC,
Application for a Siting Certificate to authorize the
construction and operation of a wholesale electric
generating facility in Brooke County, West Virginia.

COMMISSION ORDER
The Commission rules on the Motion to Compel filed by ESC Brooke County
Power I, LLC on September 14, 2017, and the Motion to Compel filed by the West
Virginia Building and Construction Trades Council on September 11,2017.

BACKGROUND
On April 26, 2017, ESC Brooke County Power I, LLC (ESC Brooke), a Delaware
limited liability company, filed a verified application for a Siting Certificate
(Application) pursuant to W.Va. Code $24-2- 1 1c, requesting authorization to construct
and operate an electric wholesale generating facility (Project) in Brooke County, West
Virginia. The proposed Project is an 830 MW natural gas fired electric generating
facility consisting of two combustion turbines driving two combustion turbine generators,
with ancillary equipment and buildings needed for the operation of the Project. It is to be
constructed on a former coal strip mine area that is now the Cross Creek Wildlife
Management Area owned by the West Virginia Department of Natural Resources (DNR)
and located in an unincorporated area approximately two miles south of Colliers in
Brooke County, West Virginia. ESC Brooke has entered into an option with DNR to
lease approximately twenty acres for the construction and operation of the facility.
According to the Application, a substation and 800-foot transmission line will be
constructed and owned by FirstEnergy to transfer power from the Project to the TiddWylie transmission line and into the PJM grid. ESC Brooke states that natural gas or a
blend of natural gas and ethane will be transported to the Project by dedicated pipelines
constructed, owned and operated by third parties under contract with ESC Brooke.

 ESC Brooke Motion to Compel

On August 16, 2017, ESC Brooke filed its Second Set of Discovery Requests to
Intervenor OVJA and the Local Residents (ESC Second Requests). On August 30, 2017,
OVJA and the Local Residents filed Objections to ESC’s Second Requests. On
September 5 , 2017, the Local Residents filed Responses and Objections to ESC Brooke’s
Second Requests.
On September 14, 2017, ESC Brooke filed a Motion to Compel (ESC Brooke
Motion).

On September 25, 2017 OVJA and the Local Residents filed a Response in
Opposition to the ESC Brooke Motion. (OVJA Response to Brooke)
Trades Council Motion to Compel

On August 16,20 17, the West Virginia Building and Construction Trades Council
(Trades Council) filed its First Interrogatories and Requests for Information and Data to
OVJA and the Local Residents (Trades Council Data Requests). On August 30, 2017,
OVJA and the Local Residents filed Objections to Trades Council’s Data Requests. On
Septembcr 5 , 2017, OVJA and the Local Residents filed Responses and Objections to
Trades Council’s Data Requests.
On September 11, 2017, the ’Trades Council filed a Motion to Compel OVJA to
fully respond to its Data Requests. (Trades Council Motion). On September 18, 2017,
OVJA filed a Response in Opposition to Trades Council Motion. (OVJA Response to
’Trades Council).

DISCUSSION
ESC

Brooke Motion to Compel

In its Second Data Request, ESC Brooke asks the following regarding OVJA’s
experts:
01. Provide all analyses conducted by Jon A. Pollack to estimate
potential emission reductions associated with the displacement of electrical
generation from other sources (as described in the last sentence of Mr.
Pollack’s professional profile in his resume attached to his Direct
Testimony filed in this case).

Q2. Provide copies of all reports, filed testimony, and transcripts
o f trial or hearing testimony or depositions from the 13 “Legal Case”

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 experiences set forth in Mr. Watry's Curriculum Vitae attached to his
Direct Testimony filed in this case.
OVSA objects to ESC Second Request QI on the basis of attorney-client privilege,
that it is o>erbroad and unduly burdensome, and that it is not likely to lead to evidence
relevant to the case. Also, OVJA asserts that Pollack is not testifjing about emissions
from natural-gas fired plants relative to coal-fired plants.
OVSA objects to ESC Second Request 42 stating that it is overly broad and
unduly burdensome, not likely to lead to discovery of relevant evidence and to the extent
that any information is publicly available it is just as accessible to ESC Brooke as it is
OVSA.
ESC Brooke contends in its Motion that the information it requests in Q1 and 4 2
is reasonable in order to determine the credibility of OVJA's witnesses. ESC Brooke
cites three cases in which courts have held that an expert's prior reports and testimony are
discoherable including Parkervision v. Oualcomm Inc., 2013 WL 3771226 (M.D. Fla.
Jul) 17, 2013). In the Parkervision case the Court stated, as ESC Brooke cites in its
Motion, "Prior expert reports, prior expert deposition transcripts and prior trial testimony
transcripts fall within the ambit of Rule 26 (b)( 1) general fact discovery." @.
OVJA objects to providing the information sought by ESC Second Request Q1
asserting that it is subject to attorney-client privilege, but provides no argument or
explanation about how it is subject to that privilege. In its response to Brooke, OVJA
asserts that Federal Rule of Procedure 26 does not apply in this proceeding. OVJA
attempts to distinguish the Parkervision case cited by ESC Brooke where the Court
compelled production "because the request is narrowly tailored and not unduly
burdensome . .. and it is likely that Qualcomm either has the information or can access it
with relative ease." OVJA Response to Brooke at p. 4, citing Parkervision, supra.
OVJA opposes the production of the reports, filed testimony and transcripts of
trial. hearing and depositions from the thirteen cases set forth in Mr. Watry's Curriculum
Vitae on the grounds that this information is just as available to ESC Brooke as it is to
OVJA. OVJA again cites the Court's decision in the Parkervision case discussed above.
The Commission has stated in previous cases that it has adopted Rule 26 of the
West Virginia Rules of Civil Procedure as its policy governing discovery disputes.'
Although the Parkervision case cited by ESC Brooke was decided under Rule 26 of the
Federal Rules of Civil Procedure, the Commission can look to that case for guidance. In
hi5 Professional Profile Mr. Pollack lists numerous types of analyses that he has
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ESC Brooke discusses at length the Commission's policy regarding Rule 26 of the West Virginia Rules of Civil
Procedure. citing several Commission Orders, in its first Motion to Compel OVJA filed on August 7 , 2017 at pages
9-10,

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 perfonned. ESC Brooke’s request is narrow and focused on one area of Mr. Pollack’s
analyses and the information requested is likely in the possession of OVJA’s witness or
easily accessible by him. It is reasonable to grant the Motion with regard to ESC
Brooke’s Second Request Q 1
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OVJA objects to Request 42 asserting that it is overbroad and unduly burdensome
and not likely to lead to relevant evidence without providing any explanation to support
its position. OVJA also asserts that it should not be required to produce information that
is publicly available and just as accessible to ESC Brooke as it is to OVJA. ’The
Commission notes that OVJA‘s expert witness Watry has business offices in Emeryville,
California. 1 welve of the thirteen cases listed by Mr. Watry were conducted in California
jurisdictions. Direct Testimony of Derek L. Watry at p. I . Curiculum Vitae at p. 3 . To the
extent that the information would need to be retrieved from public records, it is not as
accessible to ESC Brooke as it is to OVJA through its expert witness. OVJA states that
Mr. Watry is not a party to the case and questions the propriety of seeking this
information through discovery instead of a subpoena, but, again, provides no explanation
for this statement. The Commission finds that it is also reasonable to grant the Motion
nith regard to Request Q2. OVJA may respond by either providing paper responses or
through electronic media.
-1he questions directed to the Local Residents in the ESC Second Request ask all
of the Local Residents to provide specific detail about statements made in their

Supplemental Information filed on July 10, 2017 regarding, (i) their economic interest as
ratepayers and taxpayers, (ii) how the Project has any impact on the West Virginia power
supply. (iii) for facts supporting their claim of any adverse environmental impact and (iv)
who contacted them about becoming an intervenor and what they were told. In addition,
ESC Brooke requests more detailed information regarding statements made in some of
the Local Residents’ Direct Testimony.
I h e Commission recently entered an Order denying ESC Brooke’s Motion to
Compel the Local Residents to respond to its first set of data requests. Commission Order
entered September 20, 2017. ESC Brooke had reduced the request in that Motion to
Compel to one question asking the Local Residents to provide all specific facts they
relied on to support their contention that they will be adversely affected by the Project.
l h e Local Residents stated in response to that Motion that they had fully articulated their
case and had nothing left to produce.

In its Response to ESC Brooke the Local Residents state that they have fully
responded to ESC Brooke’s Second Data Requests. The Local Residents contend that
ESC Brooke’s Motion is unclear, appears to primarily take issue with Requests QI and
Q2 and reiterate their responses to ESC Brooke Second Data Requests Q1 and Q2. ESC
Brooke’s Second Data Requests contain other questions regarding statements some Local

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 Residents made in their pre-filed Direct Testimony and ESC Brooke does not state in its
Motion that it is limited to Requests Q1 and Q2.
It is reasonable to require the Local Residents to provide any additional
information they may have that is responsive to ESC Second Data Requests. If they have
no additional information responsive to the ESC Second Data Requests, they should
respond accordingly.

In Request Q3, ESC Brooke asks for information regarding the operations of
OVJA, information about its directors and board members and the process by which
OVJA decided to intervene. ESC Brooke contends that this information is needed
because it is critical to an understanding of OVJA and what it represents. OVJA objects
to these requests stating that the requests are overly broad and unduly burdensome and
not likely to lead to the discovery of relevant evidence. OVJA also objects to Request
Q3(a) and (b) on the basis of freedom of association and Request Q3(e) on the basis of
attorney-client privilege.
The Commission found that OVJA had stated a legal interest in this matter and
granted OVJA Intervenor status by Order of June 30, 2017. The Commission stated in
that Order that the scope of this case will not be broadened from the requirements found
within the siting certificate statute and corresponding rules. Furthermore, && 13.b.6 of
the Commission Rules of Practice and Procedure provides that discovery requests must
be pertinent to substantial issues in the proceedings. The purpose of this proceeding is to
determine if ESC Brooke has met the requirements for the siting certificate. As far as the
Commission is concerned, what OVJA represents is contained in its pleadings and
testimony filed in this case. The internal operations of OVJA are not relevant in this
proceeding.
Trades Council Motion to Cormel
'lhe Trades Council requests that the Commission order OVJA to fully respond to
its Data Requests 1, 3, 4, 5 and 6. Data Requests 1 and 3 ask OVJA to provide any
documents concerning its decision to intervene. Data Requests 4 through 6 ask OVJA to
provide documents or a written explanation about the funding of its and the Local
Residents intervention in this case.
OVJA objects to Trades Council Data Requests asserting attorney-client privilege,
that the Requests are overly broad and unduly burdensome and that the Requests are not
likely to lead to evidence relevant to this proceeding. OVJA states in its Response that it
provided forty-five pages of documents responsive to 'Trades Council Data Requests 1
and 3 and has fully responded to those Data Requests. OVJA Response to Trades
Council at p. 4.

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 OVJA also argues in its Response that the purpose of this case is to determine if
ESC Brooke is entitled to a siting certificate, not to determine why and how OVJA made
the decision to intervene or how OVJA is funded.
The Commission reiterates its discussion regarding ESC Brooke Data Request Q3.
OVJA’s operations are not relevant in this proceeding and the Commission will not allow
this proceeding to turn into a battle about OVJA’s operations.

FINDINGS OF FACT
OVJA’s expert witnesses Pollack and Watry cite the information requested
1.
b> IiSC Brooke in ESC Brooke Second Data Request Q1 and 42 as part of their
professional background for qualifying as experts in this case. Direct Testimony of
Derek L. Watry. Exhibit A, Direct Testimony of Jon A. Pollack, Professional Profile.

2.
OVJA’s expert witness Watry has business offices in Emeryville,
California. Twelve of the thirteen cases listed by Mr. Watry were conducted in California
jurisdictions. Direct Testimony of Derek L. Watry at p. 1, Curiculum Vitae at p. 3.
ESC Brooke is requesting in its Motion that the Local Residents provide
3.
morc specific detail about particular statements and claims made by each Local Resident
and does not limit its Motion to Requests Q1 and Q2. ESC Brooke Motion at pp. 4-6.
4.
in its Request Q3, ESC Brooke asks for information regarding the
operations of OVJA, information about its directors and board members and the process
by which OVJA decided to intervene.
5.
Trades Council Data Requests 1 and 3 ask OVJA to provide any documents
concerning its decision to intervene. Trades Council Data Requests 4 through 6 ask
OVJA to provide documents or a written explanation about the funding of its and the
I .oca1 Residents intervention in this case.

CONCLUSIONS OF LAW
1.
It is reasonable to grant the ESC Brooke Motion with regard to ESC
Brooke‘s Second Requests Q1 and 0 2 .

2.
It is reasonable to grant the ESC Brooke Motion with regard to requests of
the Local Residents and require the Local Residents to provide any additional
information they may have that is responsive to ESC Second Data Requests.
3.
13.b.6 of the Commission Rules of Practice and Procedure provides
that discovery requests must be pertinent to substantial issues in the proceedings.
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 4.

The internal operations of OVJA are not relevant in this proceeding.

ORDER

I T IS THEREFORE ORDERED that the ESC Brooke County Power I, LLC
Motion to Compel, dated September 14, 2017, is granted with regard to ESC Second
Data Requests Q1 to the Ohio Valley Jobs Alliance.

IT IS FURTHER ORDERED that the ESC Brooke County Power I, LLC Motion
to Compel dated, September 14, 2017, is denied with regard to ESC Second Data Request
Q3 lo the Ohio Valley Jobs Alliance.

I T IS FURIHER ORDERED that the ESC Brooke County Power I, LLC Motion
to Compel dated. September 14, 2017. is granted with regard to ESC Second Data
Request Q2.
1’1 IS FURIIIER ORDERED that the Ohio Valley Jobs Alliance provide the
information responsive to ESC Second Data Requests Q1 and Q2 within three business
days of the date of this Order either by paper responses or through electronic media.

I? IS FURTHER ORDERED that the Local Residents provide any additional
information responsive to the ESC Second Data Requests or responses stating that they
have no additional information responsive to the ESC Second Data Requests within three
business days of the date of this Order.
I?’ IS FURTHER ORDERED that the September I I , 2017 Motion to Compel the
Ohio Valley Jobs Alliance filed by the West Virginia Building and Construction Trades
Council i s denied.

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 IT IS FURTHER ORDERED that the Executive Secretary of the Commission
serve a copy of this Order by electronic service on all parties of record who have filed an
e-service agreement, and by United States First Class Mail on all parties of record who
have not filed an e-service agreement, and on Corninission Staff by hand delivery.
A True Copy, Teste,

Ingrid Ferrell
Executive Secretary

RMA/rm
17052 1cg

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