PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON. CABELL-HUNTINGTON HEALTH DEPARTMENT, a county agency, Complainant,

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1 PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON At a session of the PlJBLIC SERVICE COMMISSION OF WEST VIRGINIA in the City of Charleston on the 1 4'h day of November CASE NO S-C CABELL-HUNTINGTON HEALTH DEPARTMENT, a county agency, Complainant, VILLAGE OF BARBOURSVILLE, a municipality; and HURRICANE PLAZA, INC., a corporation, Defendants. COMMISSION ORDER The Commission denies the Village of Barboursville (Village) and Hurricane Plaza Inc. (I-IPI) requests for reconsideration of the October 22, Commission Order that denied the Joint Motion to hold this case in abeyance. The Commission, however, modifies the procedural schedule set forth in its August 22,20 18 Order, and continues the evidentiary hearing until January 8, BACKGROUND On July 2, 2018, the Commission granted the Cabell-Huntington Health Department (Health Department) request and issued an Order reopening this case. The evidentiary hearing is currently scheduled for November 19, 201 8, in this matter. Commission Order, August 22, In a separate case, on or about September 20, 2018, the Commission Final Order in A I, Commission Case Nos W-C, W-C, W-C, W-C and W-C was appealed to the West Virginia Supreme Court of Appeals (Supreme Court) by the City of Wheeling (Wheeling Appeal).

2 On October 18, Staff filed a Joint Motion on behalf of the Health Department, Village and HPI. The parties requested the Commission to hold this matter in abeyance pending the outcome of the Wheeling Appeal because the cases pose similar legal issues. On October 22, 20 18, the Commission issued an order denying the Joint Motion. On October 26, 2018, the Village filed a Motion for Reconsideration of the October 22, 2018 Order and renewed the request to stay this case pending a decision in the Wheeling Appeal. The Village reasserted the three grounds for relief stated in the Joint Petition. First, the Village asserted that a stay of this matter is warranted because "[tlhe outcome of the [Wheeling Appeal] will likely hold precedential value relative to the distinctly similar facts of this case." Motion for Reconsideration at 1, Oct. 26, In the Joint Motion, the parties stated that "[tlhe Supreme Court's ultimate disposition of the Wheeling matter will reduce and/or eliminate the need to litigate this matter." Joint Motion at 1, Oct. 18,2018. Second, the Village stated that no immediate threat of harm exists because the initial public health and safety concerns have been abated. Motion for Reconsideration at 1. As stated in the Joint Motion: The parties note that both the sewer and storm sewer lines have been repaired and are operational, so there is no current health hazard present. The sinkhole does still exist, but a significant portion of the hole has been filled in. The remaining portion ofthe hole that still exists is the area where the sanitary sewer line is exposed. Joint Motion at 2. Third, the Village stated that granting a stay will not harm or prejudice any party, but instead would promote judicial economy and save the parties time and money. Motion for Reconsideration at 2. On October 3 1, 20 18, HPI filed a Motion for Reconsideration of the October 22, Order and joined the arguments stated by the Village. HPI also stated that due to personal reasons, counsel would be unable to sufficiently prepare by the November 19, 20 I8 evidentiary hearing and requested this case be delayed. On November 14, 201 8, the Village filed a Motion to Continue the November 19, evidentiary hearing because several of its witnesses are not available due to scheduling conflicts. 2

3 DISCUSSION The three reasons asserted by the Village, and adopted by HPI, urging the Commission to reconsider and vacate the October 22, 2018 Order and stay this matter are not persuasive. The parties fail to recognize existing Supreme Court and Commission decisions, as well as the Commission Rules for the Government of Sewer Utilities, 150 C.S.R. 5 (Sewer Rules), that govern the issues presented in this case. Furthermore, the facts in this case have not yet been established through an evidentiary hearing. It is premature to state that the appellate decision rendered in the Wheeling Appeal will provide precedential value requiring a delay in this case. The Commission will adjudicate this complaint based on its specific facts, the West Virginia statutes, Commission rules and Court and Commission decisions. The parties contend there is no immediate threat of harm because the broken sewer line was repaired, A potential for harm, however, exists each day the issues herein remain unresolved. A problem with the sewer line could arise any day. Meanwhile, ownership and responsibility for maintenance and repair remains in dispute. Resolution of these issues presented in this case is necessary for the on-going integrity and safety of sewage collection for the customers and public served by the line. The uncertainty of who owns and is responsible for the sewer line, the risk of a service interruption going unaddressed, and the length of time this matter has remained unresolved, weigh in favor of moving forward. As a professional courtesy, the Commission will continue the evidentiary hearing in this case until January 8, 2019, based on two witnesses for the Village and counsel for HPI being unavailable on November 19, 2018, and there being no objections to the requests to continue. Direct prefiled testimony was due in this matter on October 23, If a party seeks to present a position on the issues presented in this case at the evidentiary hearing, that party must file written prepared testimony, as set forth in the procedural schedule. See, Rule 13.3 of the Commission Rules of Practice and Procedure, 150 C.S.R. Series 1. Prefiled direct and rebuttal testimony, and any related exhibits, must contain the entirety of the party s evidentiary case. This allows all parties to have prior notice and knowledge of each party s position and allows for a more expedited hearing. When witnesses take the stand at the evidentiary hearing, therefore, it is not necessary for them to restate the content of their prefiled testimony because the Commission and all the parties should have read that testimony. When the witnesses take the stand, it is for the purpose of allowing the other parties to cross-examine them on their prefiled testimony. Each party must be represented by counsel at the scheduled evidentiary hearing pursuant to Procedural Rules 4.1 and

4 FINDINGS OF FACT 1. The Commission considered each issue raised by the Village in the Motion for Reconsideration, joined by HPI, when it denied the Joint Petition. Joint Motion at I, Oct. 18, 20 18; Motion for Reconsideration, Oct. 26, 20 18; Motion for Reconsideration, Oct. 31, Counsel for HPI has a scheduling conflict with the current procedural schedule set by the August 22, 2018 Commission Order. Motion for Reconsideration, Oct. 31, Due to scheduling conflicts, several of the witnesses for the Village are unavailable to appear at the November 19, 2018 evidentiary hearing. Motion, Nov. 14, CONCLUSIONS OF LAW 1. The Commission should deny the renewed requests to vacate the October 22, Commission Order and grant a stay of this case because neither the Village, nor HPI, establish legal grounds, issues or arguments that the Cornmission has not previously considered. 2. The evidentiary hearing should be rescheduled because counsel for HPI has a scheduling conflict with the current procedural schedule. 3. Parties who intend to call a person or persons to testify at the rescheduled evidentiary hearing must have filed written prepared testimony pursuant to Procedural Rule OFWER IT IS THEREFORE ORDERED that the October motion for reconsideration filed by the Village of Barboursville is denied. IT IS FlJKTHER ORDERED that the October 3 1, motion for reconsideration filed by Hurricane Plaza, Inc. is denied. IT IS FtJRTE-IER ORDERED that the requests by Hurricane Plaza Inc. and the Village of Barboursville to continue the November 19, evidentiary hearing because counsel for Hurricane Plaza Inc. and witnesses for the Village of Barboursville are unavailable are granted. 4

5 IT IS FURTHER ORDERED that the following procedural schedule is adopted in lieu of and as a replacement for the procedural schedule set by the August 22, 2018 Commission Order, Direct Testimonv from all Darties 1 4:OO 0.m.. October 23, Rebuttal Testimonv from all Parties 1 4:OO 0.m.. November 13, Parties Agreed Order of Witnesses 1 4:OO mm.. Januarv Status Report Regarding Stipulations 4:OO p.m., January 3,2019 Reached by the parties Evidentiary Hearing 9:OO a.m., January 8, 2019 PSC Howard M. Cunningharn Hearing Room IT IS FURTHER ORDERED that the Executive Secretary of the Commission serve a copy ofthis Order by electronic service on all parties of record who have filed an e-service agreement, and by United States First Class Mail on all parties of record who have not filed an e-service agreement, and on Commission Staff by hand delivery. A True Copy, Teste, Ingrid Ferrell Executive Secretary NNT/rm ce