Supreme Court Declines to Hear Sewer Appeal
By Drew Tanner
In a 5-0 decision September 6, the justices of the West Virginia Supreme Court of Appeals declined to hear an appeal regarding the sewage treatment plant proposed for Snowshoe and Slaty Fork.
Attorney Deirdre Purdy, representing Tom Shipley, said the court's decision was not a strike against the merits of the case, but simply meant the court did not want to hear the appeal.
"It doesn't go to our underlying questions at all, or the site or the sewage treatment plant itself," said Purdy. "If it tells us anything indirectly, it tells us we should go to the DEP."
The West Virginia Department of Environmental Protection is expected to issue a permit for the proposed plant to discharge into the Big Spring Fork of the Elk River (here and here) in the near future.
Shipley—who represents the fourth generation of his family to operate Sharp's Country Store and Bed and Breakfast—has steadfastly argued that the site chosen by project planners and owned by his aunt Barbara Sharp Smith, of Texas, is the wrong place to put the plant.
Shipley and his legal team have argued that the location of the plant would be devastating to his business and to the health of the Big Spring Fork, which is a native trout stream.
Local and state conservation groups have weighed in with their own concerns about the project and its impact on the stream.
In the marble chambers of the Supreme Court Wednesday morning, Purdy argued that the West Virginia Public Service Commission had not followed its own regulations when it granted a Certificate of Necessity for the sewage treatment plant.
Purdy pointed out that the PSC requires a project to have all the necessary permits or to show good cause as to why the permits are not available.
In this particular case, Purdy said, the PSC is now arguing that the law prevents the permits from being available or even applied for.
Purdy also argued the PSC had failed to address the fact the record shows the plant will be too small to serve the area in just 10-to-15 years.
The regulations of the Bureau of Public Health and DEP require that plants be designed to handle at least 20 years of population growth and development.
While the PSC can't enforce the regulations of another state agency, Purdy said the PSC has considered whether other projects meet BPH and DEP standards.
It is part of the PSC's job to decide whether or not a project is adequate, reliable, well planned and balances the needs of present and future customers, Purdy said.
From the bench, Justice Larry Starcher asked Purdy if the people who would be served by the plant actually wanted it.
Purdy replied that there were "numerous petitions" on record with the PSC against the project, both from residents in the Slaty Fork area and Snowshoe property owners.
Starcher also asked how many households the project would serve off the mountain.
Purdy replied that the number was 164—about 8 percent of the total customer base—and that "most say they don't want it."
Tom Michael, representing the Pocahontas County Public Service District said the protests lodged with the PSC represented a small number of the 1,981 potential customers.
Michael also told the court that 57 of the 65 easements needed for sewer lines between Snowshoe Mountain and the Sharp property had been donated, indicating support for the project.
Michael was joined by PSC attorney Cassius Toon in saying that Shipley's argument was with the DEP, and not the PSC.
Toon added that the certificate from the PSC would be invalid if the necessary permits did not come through.
While permit details were being argued in Charleston, the DEP responded to a citizen complaint of a possible sewage spill in the Slaty Fork area that same morning.
DEP spokesperson Jessica Greathouse said inspector Robin Dolly traveled to Slaty Fork to investigate.
"This area is approximately 10 miles from the Snowshoe Resort sewage treatment system," said Greathouse. "As of [Thursday] morning, Inspector Dolly had no evidence that a sewage spill had occurred from any sewage system."