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PSD seeks funds to evaluate alternatives

Thursday November 22, 2007
The Pocahontas Times

By Drew Tanner, Staff Writer

After county commissioners halted a request for funds for a project coordinator, the Pocahontas County Public Service District is now asking for money to evaluate alternative sites for the controversial regional sewage project in Slaty Fork.

During a special meeting Friday night, PSD president William Rexrode and board member Mark Smith, appearing from Elkins via telephone, voted to seek the county commission's stamp of approval on its application for a $25,000 Local Economic Development Assistance Grant to test other sites for the sewage treatment plant.

According to budget estimate provided to the PSD by Thrasher Engineering, $8,000 would be used for floodway evaluations, $12,000 for subsurface testing of the sites and $5,000 for environmental studies.

The application does not mention any specific locations, only "sites... for the Slaty Fork/Linwood area."

Smith said engineers are interested in a site owned by the State Rail Authority at the confluence of the Big Spring and Old Field forks of the Elk River. That site lies at the parking area for the catch-and-release portion of the Elk River and would likely require building the facility on elevated foundations in case of floods, said Smith.

Smith said two other sites have been discussed with engineers, but added he was not comfortable saying any more about them since he was not certain of their locations.

Much of the motivation for moving the site comes from the specter of eminent domain, Smith said, which has made the project unpopular with many county residents.

The current site proposed by engineers sits on property belonging to members of Slaty Fork's Sharp family and is just down the road from Sharp's Country Store and Bed and Breakfast.

Store proprietor Tom Shipley and his family have said they don't want the plant on their land and have challenged the project on environmental grounds and the threat that it could pose to their family business.

"If we can get the eminent domain issue off the table, that would be a strong plus for the project," Smith said at Friday's meeting.

Cass resident David Fleming, who runs the website, asked if the lack of a project coordinator would hinder the [alternative site evaluation aspect of the] project.

Smith replied that the evaluations will be coordinated by Thrasher Engineering, which has contracted with firms to do survey work and geological analysis in previous phases of the project.

In September, board members had voted unanimously to request a $25,000 LED grant to fund a project coordinator's salary for six months. The PSD had hired Slaty Fork resident Kermit Friel for the position in March, contingent on funding becoming available.

Friel previously worked as a contractor for the PSD to secure easements for the project.

At the PSD's July meeting, County Commissioner Reta Griffith presented the board with the grant application, which she said had been forwarded to her by state Senator Walt Helmick.

At the July meeting, the PSD held off on acting on the grant application when it was pointed out the instructions said the grant could not be used to pay salaries, and the application itself was for the state's 2006 fiscal year.

In August, Millican told his fellow board members he had assurances from the governor's office that the grant would be approved and added that the grant's approval was at the governor's discretion.

Millican, who was not present at Friday's meeting, also said the PSD could potentially receive up to $100,000 from another source if the application was submitted and approved. Millican said he was not at liberty to disclose the source of the funds at that time.

Both Rexrode and Smith were skeptical of the arrangements Millican had made and said they wanted to see such assurances in writing.

Smith said he thought the money should be used to evaluate alternate sites, rather than paying a salary.

In September, Smith and Rexrode appeared to acquiesce. However, county commissioners, refused to put their signatures on the application at their November 6 meeting, pointing out the grant application's specifications that salaries cannot be funded by the money.

Commission president James Carpenter said he wouldn't sign the grant application for salaries when salaries are prohibited.

"I'd prefer the $25,000 be used for site selection," he said.

Griffith agreed with Carpenter, saying she was "not willing or comfortable" applying for a grant under those circumstances; however, she did say she was still willing to be the PSD's fiscal agent, but only for eligible grant monies.

Earlier Friday, Chief Circuit Judge James Rowe dismissed a petition for an injunction against the project filed by Indian Draft resident John Leyzorek. Leyzorek had also challenged the PSD's contract with project attorney Tom Michael.

Rowe said that Leyzorek failed to appeal the Public Service Commission's approval of the project and its approval of the county's plans to expand the PSD's boundaries in 1997 and in 2002, which Leyzorek had a right to do as an intervenor. Granting the injunction would allow Leyzorek to circumvent the proceedings of the PSC, which appeared to have been carried out properly, said the Judge.

Rowe also upheld Michael's contract with the PSD, which Leyzorek argued created a conflict of interest, since the attorney will only get paid once funding for the project becomes available.

Rowe noted that fee-contingent contracts are common in legal practice.

"If your argument were true, every personal injury attorney that ever filed a case would be disqualified," the judge said.

Leyzorek had also argued that the PSD's actions over the past several years were not legal, since board member Mark Smith was not bonded when he served as treasurer.

Rowe said the bond issue "doesn't remove the authority of the board members to act." Last month, the PSD appointed Durbin water plant manager Rick Barkley as its treasurer.

Michael said that state law allows for the treasurer to be someone other than a board member, and that Barkley-who is bonded-has long acted as the district's treasurer and managed its books.

Leyzorek had filed additions to his initial petition, but Rowe dismissed those arguments as well, saying they were not persuasive.