The West Virginia Department of Environmental Protection determined this week that Fundamental Data, the company proposing to build a massive data center and power plant complex in Tucker County, did have legal site control when it was approved for an air quality permit last year.

The determination from the DEP came after the Department of Commerce, which oversees the state’s high impact data center certification process, questioned who actually owned the land in correspondence last month.

The DEP previously gave Fundamental Data until Aug. 7 to provide evidence showing it controlled the proposed site of the development. 

Fundamental Data missed that deadline, but did provide the agency with an almost entirely redacted copy of its sale and purchase agreement for a 291-acre tract of land in Tucker County on Monday. The sale was between Western Pocahontas Properties and Fundamental Data, and occurred on July 19, 2024.

Laura Crowder, director of the Division of Air Quality, in a letter to Fundamental Data on Wednesday, said that the redactions in that agreement were appropriate as they constituted “confidential business information.” She said the redacted details were “not necessary” for the Division of Air Quality to determine legal site control. As such, she continued, the redacted land sale was “sufficient” to meet the standards under which Fundamental Data was issued an air quality permit last year.

A spokesperson for Fundamental Data said in a news release Thursday that the redacted information includes “financial terms and other negotiated commercial provisions” between the company and Western Pocahontas Properties. It does not include, per the press release, “information regarding the facility’s permitted environmental obligations, emissions limits, monitoring requirements, testing requirements or reporting obligations.”

Casey Chapman, a representative for Fundamental Data, defended the company’s choice to heavily redact information provided to the state. Since filing for an air quality permit last year, the company has faced scrutiny for its lack of transparency with the public, including residents who live near the proposed project site and who are worried about the potential consequences of the development.

“Private is not the same thing as secret,” Chapman said. “The economics and negotiated terms of a private land transaction have nothing to do with what comes out of a stack. The public has every right to know what this facility is permitted to emit and what environmental standards it must meet. Those requirements are public.”

While that information is public, other details regarding Fundamental Data’s proposed activities — including the size of the proposed structures and detailed information on emissions outside of estimates — have not been made available. Experts called to testify about the company’s proposals and who were able to see other redacted information have questioned how the company will keep emissions below required levels.

Fundamental Data said in a separate news release Friday that the determination from the DEP “provides a clear resolution” to questions over who has control of the land in Tucker County. Now, Chapman said, the company intends to ”continue advancing the Ridgeline Facility through the applicable regulatory process.”

“We said we would provide straight answers and work through the regulatory process,” Chapman said. “We did exactly that. The State reviewed the documentation, verified the property against the permitted site, and confirmed that the requirement was satisfied. We appreciate the Division’s thorough review and look forward to continuing to move the project forward.”

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