101 South Queen Street Martinsburg, West Virginia Post Office Drawer 1419 Martinsburg, West Virginia (304)

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1 ; 1 I? p B q p!!l; &- I.?P3 Y 600 Quarrier Street 7000 Hampton Center Morgantown, West Virginia Avery Street Parkersburg, West Virginia Southpointe Town Center 1800 Main Street, Suite 200 Canonsburg, Pennsylvania Chapline Street ~ T AT LAW ~ ~ Wheeling, West ~ Virginia ~ ~ 101 South Queen Street Martinsburg, West Virginia Post Office Drawer 1419 Martinsburg, West Virginia (304) West Jubal Early Drive, Suite 130 Winchester, Virginia Floyd M. Sayre, I11 Telephone - (304) Facsimile - (304) www. bowlesrice.com May 7, Address: ksavrecii, bowlesrice.com Edythe Nash Gaiser, Clerk of Court WAND DELIVERY Supreme Court of Appeals of West Virginia State Capitol Room E Kanawha Boulevard, East Charleston, West Virginia 2 5- Dear Ms. Gaiser: Re: Ohio Valley Job Alliance, Inc., et ai v The Public Service ~ o~~ission of West Virginia - No Enclosed for filing, please find one (1) original and ten (IO) copies of the Amicus Curiae Brief and the ~otion for Leave to File Amicus Curiae Brief with regard to the abovereferenced matter. Please note that copies of the same have been sent via United States Postal Service to those persons as set forth in the Cert~~cate of Service. Very truly yours, - FMS/rnkh Enclosure cc: Robert M. Adk~ns Linda S. Bouvette lngrid Ferrell Jessica M. Lane Emily V. Danford Robert Hafke Gregory Phillips Lee F. Feinberd Keith D. Fisher Susan J. Riggs Floyd M. Sayre, 111

2 Edythe Nash Gaiser, Clerk of Court May 7,201 8 Page 2 Grant P. H. Shuman Kelby Thomas Gray William E. Robinson Vincent Trivelli, PPLC Joshua L. Jarrell Circular 230 Notice With respect to federal tax issues, no advice, statement or information contained in this communication is intended to be, or written or the purpose of being, (a) relied upon by a taxpayer as the exclusive basis to avoid penalties under the Internal Revenue Code, or (b) used in connection with the promotion, marketing or recommendation of any tax shelter product or tax shelter transaction

3 IN THE SU EC F APPEALS ES GINIA NO AT C ~ ~ E S T O N OHIO VALLEY JOB ALLIANCE, INC., RICHARD GOODMAN, FRANCES OLENICK, JOSEPH OLENICK, DAVID DAMI, JAMIE VANHORN AND JASON NUZUM, Petitioners, VS.) THE PUBLIC SE~VI~E CO ~ISS~ON OF WEST VIRGIN Respondent. Floyd M. Sayre, I11 [WVSB ## ksayre@bowlesrice.com owles Rice LLP 101 South Queen Street ~a~insburg, West Virginia Phone No. (304) Counsel for Amicus Curiae 1

4 Pursuant to Rule 30 of the Revised ules of Appellate Procedure for the Supreme Court of Appeals of West Virginia, The Board of Education of Brooke County, West Virginia ( the Board ) respectfully requests leave of this Court to file an amicus curiae brief in support of the Public Service Commission. The Board entered into a Payment in Lieu of Taxes Agreement (the PILOT Agreement ) with the ESC Brooke County Power I, LLC, the Brooke County Commission, the rooke County, West Virginia, and the Assessor of Brooke County, West Virginia, on March 27,2017. As a result of the PILOT agreement the Board would receive tax revenue that it would not receive if the order of the Public Service Commission were reversed. For these reasons, the Board respectfully requests leave to file the attached brief as amicus curiae in support of the Public Service Commission. B e OF BROO IA, By Counsel Floyd M. Sayre, I11 [WVSB # ksayre~bowlesrice.com Bowles Rice LLP 101 South Queen Street Martinsburg, West Virginia Phone No. (304) (304) Facsimile Counsel for Amicus Curiae 2

5 I, Floyd M. Sayre, 111, hereby certify that on the 7th day of May, 201 8, the foregoing Board of ducati ion of ~rooke Coumty, West ~rginia ~otiom For Leave to File Amicus Curiae Brief in Support of The Public Service Commission of West Virginia., was served by mailing a true and exact copy thereof by United States mail, postage prepaid, upon the following: Robert M. Adkins Linda S. Bouvette Ingrid Ferrell Jessica M. Lane Public Service Commission 201 Brooke Street Grant P. H. Shuman Spillrnan Thomas and Battle, PLLC 300 Kanawha Boulevard, East Vincent Trivelli, PPLC 178 Chancery Row Morganto~, West Virginia Emily V. Danford Robert Hafke Gregory Phillips 200 Public Square, Suite 2300 Cleveland, Ohio Kelby Thomas Gray William E. Robinson Dinsmore & Shohl LLP 707 Virginia Street East, Suite 1300 Joshua L. Jarrell West Virginia Department of Commerce 1900 Kanawha Boulevard, East State Capitol Building #3, Suite 600 Floyd M. Sayre,

6 EC F WEST VIR~INIA AT CHARLESTON OHIO VALLEY JOB ALLIANCE, INC., RICHARD GOODMAN, FRANCES OLENICK, JOSEPH OLENICK, DAVID DAMI, JAMIE VANHO JASON NUZU~, Petitioners, VS.) NO.: THE P~BLIC SERVICE COM~ISSION Respondent. CO~NTY, WEST VI~GINIA MOTION FOR EF IN SUPPORT OF THE PUBLIC SERVICE F WEST VIRGINIA. Floyd M. Sayre, 111 [WVSB ft ksayre@bowlesrice.com Bowles Rice LLP 101 South Queen Street ~a~insburg, West Virginia Phone No. (304) Counsel for Amicus Curiae

7 P TENTS I. INTEREST OF THE AMICUS THE ESC BROOKE COUNTY POWER I, LLC PROJECT BEST INTEREST OF THE CITIZENS AND STUDENTS OF BROOKE COUNTY... 1 A. THE ECONOMIC IMPACT OF THE ESC BROOKE COUNTY POWER I PROJECT... 1 B. TEE PAYMENT IN LIEU OF TAXES AGREEMENT (PILOT) WILL PROVIDE SUBSTANTIAL REVENUE TO THE BROOKE COUNTY BOARD OF EDUCATION CONCLUSION... 4

8 The Brooke County Board of Education is the duly elected body that is charged with the oversite of the Brooke County School District. One of the primary functions of The Board is to ensure that the school district has sufficient revenues to provide a high quality educational experiences to the children of Brooke County. The ESC Brooke County Power I, LLC project will provide substantial payments to the Board for the term of the life of the project. E ESC BROOKE COUNTY POWE I, LLC PROJECT BEST INTEREST OF THE CITIZENS AND STUDENTS OF BROOKE COUNTY A. THE ECONOMIC IMPACT OF THE ESC BROOKE COUNTY POWER I ROJECT The best judge of the actual economic impact of the project on Brooke County and the surrounding areas are the elected representatives of the citizens and Brooke County. The Board and the County Commissions are the elected governing bodies of the area and have listened to their constituents. Based upon the input of the citizens of Brooke County and the review of the economic data presented to the Public Service Commission at its hearing, the Board strongly believes that this project is in the best interest of the State of West Virginia and Brooke County. To forego the project will stunt the economic vitality of the area. The Board after reviewing economic impact assessment of Dr. Tom S. Witt, agrees with many of his findings. The project will provide substantial employment, employment compensation, value added, output, sourcing of natural gas, and tax and other revenue payments. The project has a projected total construction costs of $884.1 million which would represent the the largest capital investment ever made in Brooke County. This investment will provide sustained growth in Brooke County and est Virginia for generations, including employment opportunities and revenue.

9 Dr. Witt determined that the plant will use $177.5 million (2016 dollars) annually of natural gas sourced through long-term fuel agreements. A gas interconnection will be constructed at an additional cost of $55 million (2014 dollars). The production, transportation and consumption of the gas will provide additional economic activity to the area. The economic impacts associated with project construction over the three years are estimated to result in 3,795 job years, $243.2 million in employee compensation, $ million in value added, and $1,250 million in output (2014 dollars). The economic impacts associated with the first full-year of operation are estimated to result in 1,144 full- and part-time jobs (including 30 at the plant), $73.3 million in employee compensation, $ million in value added, and $440.5 million in output (2014 dollars). If the Supreme Court where to overturn the decision of the Public Service Commission s Granting a Siting Certificate to Construct and Operate a Natural Gas-Fired Wholesale Electric Generating Facility in Brooke County, West Virginia it would deprive the area of all of the projected economic development. T) ILL PROV~D~ OF By the terms of the PILOT agreement the Board will receive: The parties hereto agree that the Commission shall make an initial contribut~on to the Board in the amount of $500, which shall be made by tendering the sum of $100, to the Board over a period of five (5) years with the first contribution to be made at the e Co~mission receives the Initial Rent Payment from ESC in the amount of $1,000~000.00, and the four additional payments of $100, shall be made four consecutive years thereafter. 2

10 In addition to Paragraph Five, the parties agree that the Commission shall make annual payments to the Board in the amount of $259,800.00, which shall be made on an annual basis at the time the Commission receives the Basic Rent Payment from ESC in the amount of $433, In addition to the contributions set forth in Paragraph Five and Six, the parties further agree that the Commission shall enter into a payment in lieu of taxes agreement with ESC. Beginning in the first year of the payment in lieu of taxes agreement, the Commission shall place the annual sum of $167, received from ESC in the category of payment in lieu of taxes and that the Board shall receive the percentage that it is entitled to receive from these funds based upon the provisions of Chapter 7, Article 1 IB, Section I8(b)(2), which at the current time based upon the current levy would entitle the Board in the first year to receive $100, as payment in lieu of taxes. The parties agree that an annual payment in lieu of taxes shall be made to the Board by the Commission, and the Commission shall continue to place funds in the category of payment in lieu of taxes for a period of thirty (30) years. In accordance with Article 111, Section 3.03(a) of the Payment In Lieu of Taxes Agreement with ESC, the amount of payment in lieu of taxes placed into this category by the, Commission shall begin in the first year in the amount of $167,000.00~ and each subsequent payment in lieu of taxes shall be in an amount equal to the previous years actual payment in lieu of taxes made adjusted by the greater of: (A) the increase, if any, in the Consumer Price Index for AI1 Urban Consumers for the U.S. City Average for All Items, as published by the Bureau of Labor Statistics for the United States Department of Labor, or if such index is not available, such other index as the parties may agree most closely resembles such index, between the previous years actual payment in lieu of taxes and October lst, or (B) 2.5 percent. This will result in the Board receiving payment in lieu of taxes (PILOT) of $7.3 million and lease payments of $20 million over a 30-year period, including an upfront payment of $1,000,000. These payments are dramatically higher than current taxes levied on the property. The Site currently does not generate ad valorem tax payments. The PILOT agreement will exempt the Facility for the term of the agreement (30 years) from ad valorem property taxation and the state Business & ccupation Tax ("B&Q" Tax) on the privilege of generating electric power. This benefit allows the Project to be constructed and compete with other power plants. 3

11 The Board as well as every other county board of education continue to struggle to have sufficient revenue to provide a quality education to the students of West Virginia. Because the Site does not currently generate tax dollars the $27 million dollars plus that the facility will provide to the students over the initial thirty year period will help the Board to accomplish its mandate CONCLUSI Based on the foregoing, the Board of ducati ion of Brook County urges the Court to affirm the order of the Public Service Commission Granting a Siting Certificate to Construct and Operate a Natural Gas-Fired Wholesale Electric Generating Facility in Brooke County, West Virginia. y Counsel c Floyd M. Sayre, I11 [WVSB ## ksayre~bowlesrice.co~ Bowles Rice LLP 101 South Queen Street arti ins burg, West Virginia Phone No. (304) (304) Facsimile Counsel for Amicus Curiae 4

12 I, Floyd M. Sayre, HI, hereby certify that on the 7th day of May, 20 18, the foregoing Board of ~~uca~ion of Broo~e Coufl~, West Virginia ~otiofl For Leave to File Amicus Curiae Brief irt Support of The Public Service Co~mi~s~on of West Virgiflia,, was served by mailing a true and exact copy thereof by United States mail, postage prepaid, upon the following: Ingrid Ferrell Jessica M. Lane Public Service Commission 201 Brooke Street Susan J. Riggs Grant P. H. Shuman Spillman Thomas and Battle, PLLC 300 Kanawha Boulevard, East Dinsmore & Shohl LLP 707 Virginia Street East, Suite Chancery Row s organ to^, West Virginia Floyd M. Sayre, 111