PUBLIC SERVICE COMMISSION. CHARLESTON Entered: April 18, Complainants, Defendant.

Transcription

1 ~~ ENTERED CHARLESTON Entered: April 18, 1991 CASE NO PSD-C MR. and MRS. THOMAS SAYRE, 405 Montcalm Drive, Charleston, Kanawha County, V. Complainants, ELK-PINCH PUBLIC SERVICE DISTRICT, a public utility, Defendant. RECOMMENDED DECISION On November 22, 1989, Mr. and Mrs. Thomas Sayre (Complainants), 405 Montcalm Drive, Charleston, Kanawha County, filed a formal complaint, duly verified, against the Elk-Pinch Public Service District (Defendant or District), a public utility. The Complainants alleged that the Defendant had been billinq them incorrectly by billina on water usaae and not on a 2 minimum bill basis as directed by the Commission in Gwinn, et al. v. Crab Drchard-MacArthur Public Service District, Case Nos S-C, S-C and C. The Complainants further indicated that, based upon a letter from the Capital City Septic Tank Service, sewage would not flow by gravity from their house to the Defendant's main. On November 22, 1989, the Commission directed the Defendant to satisfy the complaint or make answer thereto within ten days of the service upon it in accordance with the provisions of Rule 7 of the Commission's Rules of Practice and Procedure. On December 8, 1989, the Defendant filed its answer to the allegations contained in the complaint. 3n January 6, 1990, the Commission prohibited the Defendant from seeking collection of the disputed charges from the Complainants either by seeki the termination of the Complainants' water service for non-payment of the disputed charges or by other collection measures which would otherwise be available to the Defendant. The matter was scheduled for hearing on September 18, The hearing was held as scheduled at 201 Brooks Street, Charleston, West Virginia, in Hearing Room No. 2, at 9:30 a.m. In attendance at the hearing were Thomas Sayre, pro se, Robert Goldberg, Esquire, counsel for the Defendant, and Robert M. skins, Esquire, attorney for the Legal Division. PUBLIC SERVICE COMMISSION

2 , EVIDENCE PRESENTED AT HEARING Preliminarily, the District requested postponement of the hearing on the grounds that a hearing had been conducted before the Circuit Court Kanawha County on September 12, 1990, and it felt thathe Circuit Court was the proper forum for the matter under the law and also because Mr. Sayre is employed as a Staff Attorney at the Public Service Commission, which would render the Commission incapable of making an objective decision. The Defendant indicated that the Commission has primary jurisdiction over rate disputes or billing disputes, but the question of compelling connection to the system is solely within the Circuit Court's jur diction. (Tr., p. 12). Thomas Sayre testified that, in the summer of 1989, he purchased a residence at 405 Montcalm Drive, Crede, where he presently resides. (Tr., p. 13). At the time of purchase, the house was being served with a sept tank on the premises. He received a minimum bill for sewer services from the Defendant. Mr. Sayre recalls the conversation with Mr. Bud Wilson, Manager of the District, wherein Mr. Wilson said that there was a prob serving the residence but that he believed sewer service was availabl by gravity, if the line went near the telephone pole to the right side Sayre's property. (Tr., p. 16). Mr. Sayre received his first bill in October. He filed this complaint on November 22, At some time Mr. Wilson informed Mr. Sayre that he was going to send sewer bills based water usage computations because Mr. Wilson was upset with the Crab Orchard, supra, decision rendered by the Commission. Mr. Sayre thought that Mr. Wilson was trying to use Mr. Sayre's position an as employee at the Commission to try to embarrass the Commission. (Tr., p. 17). Mr. Sayre paid two minimum bills even though he felt that there w legitimate dispute over whether they were appropriately rendered. Mr. Sayre did not want his water terminated for non-payment of sewer bills. During that time, the Defendant filed a lien against the Complainants' property which the Complainants are requesting to be removed from the records. (Tr., p. 17). Mr. Sayre strongly contended that he cannot tie into the Defendant's main line because his sewage will not flow by g without a line being laid under his driveway. (Tr., pp. 17, 23, 25). Mr. Sayre had not hired an engineer to defend his position. (Tr., p. 31). The Defendant's sewer main runs in front of the Complainants' property, with the tap near the elevation of the exit of his sewer line. (Tr., p. 32). The District apparently requested a Department of Health Evaluation Report. The Report submitted into the record was dated August 21, 1990, indicated that Mr. Sayre had a failing septic system. Mr. Sayre worked on his system, which he contended remedied the septic system problems, apparently to the Health Department's specifications and satisfaction. (Tr., p. 36). Mr. Sayre's contention is that sewer service is not available by gravity and he does not have to connect to the Defendant's sy (Tr., p. 52). Mr. Sayre's service line leaves his house at the rear of his house. (Tr., p. 56). He contends that nowhere on his lot can a tap be made that will serve his property by gravity even if the line were installed under - =-

3 ~~ -p.~ f the driveway. (Tr., p. 57). Mr. Sayre says that if he were to be served by gravity, the lot next to his, which he does not own, would have to b used. (Tr., p. 58). David Foster, Utilities Inspector, Public Service Commission, testified. (Tr., p. 62). The District objected to Mr. Foster's testimony because Mr. Foster and Mr. Sayre are both employed at the Public Service Coms.slon (_T-r",.- --Mr~, ~ foster^- i-nspected-." the~"-p-rem-ises ~ on January 8, Based upon his field observations, he felt it was questionable whether the Complainants' sewage would flow by gravity from the Complainants' existing line to the Defendant's existing sewer tap in f of the Complainants ' house. Mr. Foster further stated that, if the new tap is installed south of the existing tap, it is his opinion that Mr. Sayre's line would have to go through the Complainants' concrete drivewa or onto adjacent property in violation of Sewer 5.09(11) Rules or 5.04(5). He recommended that an elevation and distance survey be made to determine the location and grade of existing sewer lines and that a plat survey performed to determine the location of the Complainants' southern prope line. (Tr., pp ). Mr. Foster provided an estimate for construction of the line if it were put into the area which the parties believed to the adjoining property. (Tr., p. 70). If the line went through the driveway, he thought the cost would be substantially more. (Tr., p. 70). Basically, Mr. Foster concluded by stating that he is not certain whether sewage will flow by gravity from the Complainants' house. (Tr., p. 75). Joe Carney, a consulting engineer, E. L. Robinson Engineering Company, testified on behalf of the Defendant. Mr. Carney indicated that his assignment by the Defendant was to send a survey crew out and measure elevation of the basement of the Complainants' house and then calculate the elevation of the sewer in front of his house relative to that basement. In other words, he was to determine how much deeper the sewer main was than the basement floor and to determine whether sewer service would be available by gravity flow. (Tr., pp. 73, 74). Mr. Carney indicated that, at the time of the field investigation, he was under the impression that his crew members were not to go onto the Complainants' property, so they could not actually survey the elevation of the sewer line exactly as it came out of his house, because it was to the rear of his house. (Tr., p. 84). Mr. Carney said he estimated the sewer exit was the same eleva- tion as the basement floor. (Tr., p. 84). Mr. Carney's results were.that the Complainants' basement floor is approximately six and one-half feet above the Defendant's sewer main. (Tr., p. 86). Mr. Carney said that even if the Complainants' sewer line were three and one-half deeper than the basement floor, the sewage would still flow by gravity. (Tr., p. 86). Mr. Sayre corrected Mr. Carney's testimony to the effect that, in July 1990, Mr. Wilson was the party who told Mr. Carney that he could n go onto the Complainants' property. (Tr., pp. 88 and 89). Mr. Carney stated that, if the sewer line exited the house at a six-foot elevation, it would be a very close question as to whether the Complainants' sewage would flow by gravity. (Tr., p. 104). Mr. Carney stated that he does not know the elevation of the Complainants' line coming out the back of the Complainants' house. (Tr., p. 106). He was not sure whether the elevation of the exodus of the line could be changed by the Circuit Court or Public Service Commission in compelling service; that is, even though the -3-

4 Complainants' line exited six feet below the basement floor, could it be raised to three and one-half feet below his basement floor to allow to flow by gravity. (Tr., p. 109). Mr. Carney reiterated that, even if the Complainants' line exited 62 inches below the basement elevation, it would flow by gravity, but if it exited at six feet, it would be very questionable. (Tr., p. 110). Mr. Garland Wilson, Manager -of the Defendant, testified next on behalf of the Defendant. Mr. Wilson testified that, at the time that the Complainants purchased the property, he informed Mr. Sayre that the sewer service was available and he could connect to the system and pay a bil Mr. Wilson said his definition of service being available was that the main was within 250 feet of the property and it is certified by. the Defendant's engineer on as-built plans from construction of the sewer project. He said sewer service is available for the Complainants. Mr. Wilson stated that there was a question raised whether sewage would flow by gravity and he asked the engineering firm to determine that. (Tr., p. 119). Mr. Wilson said that the Complainants' balance was $ for the period September 7, 1989, until the hearing and is based on metered water consumption. (Tr.,pp.127and128).Mr.Sayreinquiredaboutthe previous owners of the house and whether they were asked to hook up to system. Mr. Wilson stated that the Kinders, who owned the house previously, paid a sewer bill based upon metered consumption. Mr. Sayre pointed out that, in Case No S-42T, the Commission's Final Order directed the Defendant to find the customers who were not connected sixty days and connect them to the system. (Tr., p. 133). In the pleadings, the Defendant offered, for ease of installation, to provide another sewer tap for $250 to former owners at the juncture of Lot 73 and 72. (Tr., p. 136). Mr. Wilson stated that the Bells, who purchased the house from the Kinders, never paid their sewer bill and left a bill owing to the Defendant. Mr. Wilson does not see any problem with running the customer's service line through the driveway and the expense of doing it woul not be tremendously high to cut a 12-inch slice across the driveway in a casing; however, bringing the service lateral to the left of the house would involve a trench 11' x 11 1/2' deep. (Tr., pp ). Mr. Wilson stated that, for a $250 tap, the Defendant could give the Complainants a tap that would run within 1/16th of an inch of the property line, that would still allow Mr. Sayre to go around the edge of his driveway and hook up, making sure that the construction was within the Defendant's five-foot right-of-way. It would not touch any part Lot of 62 and the sewage would still flow by gravity and be very easy to hook up to the sewer system at the lower location below the driveway. (Tr., p. 149). He stated that, if a tap were installed at that juncture, there would be ample room without having to obtain easements. (Tr., p. 50). Michael W. McNulty, Staff Engineer, testified that he had investigated the property at 405 Montcalm Drive. He concluded that sewer service is not available by gravity under his interpretations of Sewer Rule 5.04(11), which states that the customer's service line shall not be laid in driveways or pass through premises of anyone other than the one to be served. From his investigation of where the tap is located, it would ha to go through a retaining wall and through a driveway. He said that he ' = -4-

5 could not tell whether the sewage would flow by gravity until the sewer lateral was located. (Tr., p. 69). He felt the best alternative for the Complainants was to go to the adjoining lot and extend the main and take service at that point. (Tr., p. 173). Mr. McNulty stated that he did not see sewage or smell odors when he was on the premises. (Tr., 175). p. The Defendant is correct in compelling connection of the residences within its service area to its sewer system. West Virqinia Code $16-13A states as follows: Any district furnishing sewer facilities within the district may require, or may by petition to the circuit court the of county in which the property is located, compel or may require the department of health to compel all owners, tenants or occupants of any houses, dwellings and buildings located near any such sewer facilities, where sewage will flow by gravity or be transported by such other methods approved by the department of health including, but not limited to, vacuum and pressure systems, approvedundertheprovisionsofsectionnine [S , article one, chapter sixteen of this code, from such houses, dwellings or buildings into such sewer facilities, to connect with and use such sewer facilities, and to cease the use of all other means for the collection, treatment and disposal of sewage and waste matters from such houses, dwellings and buildings where there is such gravity flow or transportation by such other methods approved by the department of health including, but not limited to, vacuum and pressure systems, approved under the provisions of section nine [S , article one, chapter sixteen of this code, and such houses, dwellings and buildings can be adequately served by the sewer facilities of the district, and it is hereby found, determined and declared that the mandatory use of such sewer facilities provided for in this paragraph is necessary and essential for the health and welfare of the inhabitants and residents of such districts and of the state: Provided, That if the public service district determines that the property owner must connect with the sewer facilities even when sewage from such dwellings may not flow to the main line by gravity and the property owner must incur costs for any changes in the existing dwellings' exterior plumbing in order to connect to the main sewer line, the public service district board shall authorize the district to pay all reasonable costs for such changes in the exterior plumbing, including, but not limited to, installation, operation, maintenance and purchase of a pump, or any other method approved by the department of health; maintenance and operation costs for such extra installation should be reflected in the users charge for approval of the public service commission. The circuit court shall adjudicate the merits of such petition by summary hearing to be held not later than thirty days after service of petition to the appropriate owners, tenants or occupants. -5-

6 Whenever any district has made available sewer facilities to any owner, tenant or occupant of any house, dwelling or building located hear such sewer facility, and the engineer for the district has certified that such sewer facilities are available to and are adequate to serve such owner, tenant or occupant, and sewage will flow by gravity or be transported by such other methods approved by the department of health from such house, dwe-1-ling or building such-sewer into- faci-1-ities, the district may charge, and such owner, tenant or occupant shall pay the rates and charges for services established under this article only after thirty-day notice of the availability of the facilities has been received by the owner. The first question in this matter is whether the Commission has jurisdiction over the issue of compelling connection and this ALJ does believe that the Commission through its delegation of authority under C has jurisdiction over the "practices and procedures of utilities"--one of which would be the steps culminating in a petition to compel zonnection in the Circuit Court. In this case, however, a petition to compel had already been filed the Circuit Court when this matter was heard. Under Code S16-13A-9, it specifically states that "[Tlhe circuit court shall adjudicate the merits Df such petition by summary hearing....'i Therefore, this ALJ will not rule on the merits of the motion to compel. The Commission's jurisdiction would include ruling on the second issue raised by the Complainant, the appropriateness of the Notice of Ivailability of Service under Code $16-13A-9 for billing purposes. The Iefendant's sewage facility was constructed in 1983 and, for whatever reason, the Defendant did not attempt, or did not succeed in its attempts, to make the former owners of the residence at 405 Montcalm connect to the system. Although it may be logical to assume there was some reason why the Defendant did not require connection by the former owners, nonethel the Defendant is attempting to compel connection now, approximately seven (7) years and three property owners after construction of the system. Th RLJ notes the Complainants may not have been anywhere in the area whe system was constructed and the notice to connect was given. The Administrative Law Judge (ALJ) concludes that notice of service 3vailability to the Complainants is necessary now to compel connection. rhis is in conformity with Rule 8.0 of the Rules and Regulations for the Zovernment of Public Service Districts. If the Defendant has not. attempted to compel connection within the last seven years, residents in xea can logically assume the District is no longer pursuing connection, 3r that service is not available to their property. Therefore, the Defendant will provide the thirty-day notice required under S16-13A-9 Code by certified mail to the Complainants or any other resident, in conform Mith Public Service District Rule 8.O before its billing of the customer :an begin. The Defendant is to cancel any past billing to the Zomplainants while the Complainants were not connected to the system, remove liens and render bills subsequent to this decision in conformity with the discussion herein. -c-

7 The Defendant's manager claims to be in disagreement with the Crab Orchard, supra, decisions which required unmetered customers pay on a minimum bill basis. Under Public Service District Rule 8.2, it states: The regulation has been properly promulgated and the Defendant must comply with it whether or not the Defendant's manager agrees with the Rule. The ALJ, in reviewing the Defendant's practices and procedures, notes that the Defendant should provide proper notice that it is going to connection, so as to allow a prospective customer adequate time to consider and refute the certification which the Defendant must give under Code S16-13A-9. Procedures for compelling connection should be established by the Defendant and should include the following: 1. The Defendant must send a Certified Notice to a property owner stating that it is requiring the property owner to connect to its sewer system by a date certain or an action will be instituted in Circuit Court. The notice should advise the prospective customer that he can protest the connection within a certain period of time and that, if protested, a hearing before its board and/or the Commission will be held. 2. If connection to the system is disputed on the grounds that service is not available because the sewage does not flow by gravity, the Defendant's consulting engineer must then certify in writing that service is available with a proper on-site inspection. This certification should be sent by Certified Mail to the prospective property owner before any hearing is held. The ALJ will note that it would have made for a better record case if the Defendant had provided its engineer's certification in writing to the Complainant prior to hearing, so that the Complainant could have had time to review the certification and to prepare his objections, if my, to that certification. Verbal certification of service availability zannot be adequately prepared for refuted. The Defendant should continue to compel connection to its system on a systematic and non-discriminatory basis. The ALJ rejects the Complainants' argument that Mr. Sayre, as a Commission employee, was singled out for selective enforcement of the law. If true, such would show a great lack of professionalism. The Defendant's argument that the Commission zannot objectively address complaints of its employees is also rejected. To deny these employees the right to use this to avenue redress their complaints against utilities would be to deny them due process of law. Any customer of any utility may file a complaint before the Commission. -7-

8 Since there were allegations of selective enforcement in this case, the ALJ directs the Defendant to submit four quarterly reports containi the total billed water usage to its customers and the total metered flow through its wastewater treatment plant for the same period. FINDINGS OF FACT 1....Code-S16--13A-9 ~ s-t-ates, "The Circuit "Court merits of such petition [to compel connection to a sewer system] by summary judgment.... It sxa11- ~adju-d~icate -the- 2. The Defendant has filed a petition to compel in the Circuit Court of Kanawha County against the Complainants. (Tr., p. 12). 3. The Commission has authority to review the practices and procedures of a utility under Code S The Defendant's system was constructed in 1983 and there have been at least three previous owners of the house and property at 405 Montcalm, the Complainants' property, since the original Notice of Availability of Service was given by publication approximately seven (7) years ago. 5. The Complainants never received any thirty-day notice of availability of facilities. (Tr., pp ). 6. West Virginia Code S16-13A-9 and Public Service Distict Rule 8.0 provide that the Defendant can charge for services only after thirty-day notice of availability of service of the facility has been received b property owner. 7. In the Crab Orchard-MacArthur, supra, decisions, and in Public Service District Rule 8.2, the Commission has stated that a district must bill unconnected customers within the district based upon the minimum b provision of its tariff, and not upon metered water usage. 8. The Complainants purchased a house in 1989 within the service area of the Defendant which was served by a septic system. (Tr., pp ). 9. The Defendant began billing the Complainants, even though they were not connected to its system, on a water usage basis and filed liens against the Complainants' property for non-payment of those disputed bills. (Tr., p. 17). CONCLUSIONS OF LAW 1. TheDistricthasanaffirmativedutytocompel or require owners, tenants or occupants of houses, dwellings and buildings located near its sewer facilities to connect to those systems under the condi that are enumerated in Code 16-13A-9; therefore, the District should -8-

9 continue to compel connection to its facilities in situations enumerated in Code $16-13A The Administrative Law Judge will not rule upon the petition to compel because it has previously been filed in Circuit Court; however, Commission may still review the procedures culminating in a petition to compel under the authority found in Code S or petitions to compel not filed in Circuit Court. 3. The ALJ finds that the thirty-day notice of availability of facilities to the property owner or Complainants was not in given conformity with Public Service District Rule 8.0 and the Defendant cannot bill the Complainants without properly providing the notice of the availabil of facilities. The Defendant is to nullify previous billings and other costs to the Complainants, release liens and to begin billing only after proper notice of availability of service has been given. 4. The ALJ concludes that, through Public Service District Rule 8.2, the Crab Orchard, supra, decisions should apply to the Defendant and the Defendant is to cease and desist from billing unconnected customer a water usage basis and to immediately bill its unconnected customers on a minimum bill basis. 5. To deny Commission employees the right to file complaints before the Commission would be denying them due process of law; therefore, Commission employees may file complaints before the Commission. ORDER IT IS, THEREFORE, ORDERED that, since the Defendant did not provide proper Notice of Availability of Service, the Defendant is to nullify all billings and other costs to, and release all liens against, the Complainants, and, further, the Defendant shall not bill the Complainants until a proper certification of availability of service is given. IT IS FURTHER ORDERED that the Defendant cease and desist from billing unconnected customers on a water usage basis immediately and, instead, the Defendant shall bill unconnected customers on a minimum bil basis in conformity with the Crab Orchard, supra, decisions and Public Service District Rule 8.2. IT IS FURTHER ORDERED that the Defendant submit four quarterly reports containing total billed water usage of its customers and the t metered flow through the wastewater treatment plant for the same period, or as close to the same period as billing cycles will allow. IT IS FURTHER ORDERED that the complaint filed on November 22, 1989, by Mr. and Mrs. Thomas Sayre against the Elk-Pinch Public Service Distri is dismissed because the same issue is under consideration by the Kanaw County Circuit Court on a petition to compel under $16-13A-9. Code -9-

10 The Executive Secretary is hereby ordered to serve a copy of this order upon the Commission by hand delivery, and upon all parties of r by United States Certified Mail, return receipt requested. Leave is hereby granted to the parties to file written exceptions supported by a brief with the Executive Secretary of the Commission with fifteen (15) days of the date this order is mailed. If exceptions are filed, the parties filing exceptions shall certify to the Executive Secretary that all parties of record have been served said exceptions. If no exceptions are so filed this order shall become the order of the Commission, without further action or order, five (5) days following the expiration of the aforesaid fifteen (15) day time period, unless it is xdered stayed or postponed by the Commission. Any party may request waiver of the right to file exceptions to an ldministrative Law Judge s Order by filing an appropriate petition in driting with the Secretary. No such waiver will be effective until spproved by order of the Commission, nor shall any such waiver operate to nake any Administrative Law Judge s Order or Decision the order of the Jommission sooner than five (5) days after approval of such waiver by the :ommission. 4R : mal Ann Rodak \ Administrative Law Judge COMMISSION SERVICE PUBLIC -10- =-