By: Mike Tony
For: HDMedia
West Virginia officials and community advocates alike are facing legal obstacles as they look to push back against developing, large-scale data center-linked projects.
The West Virginia Department of Commerce on June 18 notified Purcellville, Virginia-based Fundamental Data LLC that what the agency said was a planned 5.2-gigawatt data center complex project spanning Tucker and Grant counties requires state certification — and an overdue application from the company for that certification.
Fundamental Data, though, balked at a Department of Commerce order for it to submit the application in a June 18 letter responding to the agency, claiming it isn’t violating the state rule cited by the department and thus doesn’t need to file any certification application on a timeline required by the state for the firm.
But if the state is looking to use its assertion of Fundamental Data noncompliance with a state legislative rule as grounds for revoking the company’s West Virginia business license issued via the state Secretary of State’s Office in 2024, it may have to use another strategy to compel Fundamental Data to follow the rule.
Noncompliance with a state agency’s legislative rule isn’t considered grounds for license revocation unless the noncompliance pertains to one of the grounds in the law, such as material misrepresentation on an official form or failure to pay a fee or fine, Chief Deputy Secretary of State Donald Kersey III told the Gazette-Mail via an office spokesperson.
Exceptions to the grounds would be limited to a separate nonbusiness statute, which lists other grounds required for a type of business to operate and lies outside of the purview of the Secretary of State’s Office, Kersey noted.
Grounds for administrative dissolution for a limited liability company like Fundamental Data under state statute include:
- Failure to pay fees, penalties or taxes within 60 days of their due date
- Failure to deliver an annual report
- A misrepresentation of “any material matter in any application, report, affidavit, or other record submitted by the company”
The Department of Commerce in its June 18 letter told Fundamental Data “it appears that” the company is violating a state rule finalized in April requiring developers to seek certification from the state as a “High Impact” data center by petitioning the agency via an application containing key, basic details about the project within 30 days after they become aware that they will satisfy the definition of such a project.
The state rule that supports House Bill 2014 of 2025 requires petitioners to report:
- Their proposed electrical power capacity needed to run vital computing equipment
- Proposed project acreage and location
- Estimated capital investment and project completion date
- Proximity to schools, churches, residences, businesses, sites listed on the National Register of Historic Places, and National Historic Landmarks as designated by the National Park Service
- “Any unique physical or geological condition” on any nearby parcel that could lead to the parcel “having an inordinate burden placed upon it” due to the proposed project and any actions planned to offset the possible burden
The letter signed by Nicholas Preservati, Department of Commerce deputy secretary and state Office of Energy director, cited a May 18 meeting at which the letter states Fundamental Data shared project details indicating its Ridgeline project that secured a state air quality permit last year meets the definition of a high-impact data center, a category for projects to house and operate data-processing equipment that have a power capacity of at least 90 megawatts for their computing equipment.
The Preservati-signed letter states that under HB 2014, Fundamental Data was supposed to have submitted a request for certification within 30 days of the May 18 meeting, or by June 17.
“No such application has been received,” the letter states.
Preservati gave Fundamental Data five business days to advise the Department of Commerce if the company had changed its plans regarding the project or believed the project wasn’t subject to HB 2014, and 10 days to file its application as a high-impact data center and microgrid — a localized power grid that can operate independently to produce electricity.
That 10-day period expired Sunday.
Preservati told the Gazette-Mail Thursday the Department of Commerce was reviewing Fundamental Data’s response and would issue a reply “shortly.”
In its own letter dated June 18, Casey Chapman, identified in the letter as a “Responsible Individual” for Fundamental Data, argued the company isn’t violating the state rule behind HB 2014 because the high-impact data center certification “does not run to this company” and a separate certified microgrid district certification is voluntary and subject to no deadline.
Chapman contended there are no statutory grounds for 10-day filing deadline given by Preservati since it appears nowhere in the rule.
Chapman asked that the Department of Commerce confirm in writing that no violation finding has been made and that the company faces no compliance deadline.
He didn’t stop there.
“[W]e will make our own decisions regarding any regulatory pathway that may be available to us at the appropriate time,” Chapman concluded.
Read full article at: HDMedia
