PUBLIC SERVICE COMMISSION OF WEST VIRGINIA HEARING EXAMINER'S DECISION PROCEDURE

Transcription

1 D -II.. CHARLESTON Entered: June 13, 1985 CASE NO G-C FRED CARTER, Kimberly, Fayette County, Complainant, V. CABOT CORPORATION, a public utility, Defendant. HEARING EXAMINER'S DECISION PROCEDURE On October 25, 1984, Fred Carter ("Complainant") filed a formal complaint, duly verified, against Cabot Corporation, a public utility ("Cabot"). Complainant alleged that: (1) he had complained to Cabot about a gas leak for over two years, (2) although Cabot attempted tc repair the leak, the leak persisted, and (3) his subsequent attempt tc have the alleged leak and accuracy of his gas meter checked was not honored for some time. Complainant further alleged that when Cabot dic recheck the line, a leak was found on Complainant's side of the meter anc the meter was removed pending repair of that leak by Complainant. Complainant further alleged an increase in his monthly budget payment tc Cabot from $57 to $75 per month, and stated that he had received a Forn No. 14 termination notice based on a high gas bill. Complainant allegec that the high gas bill was caused by a leak which Cabot was responsible tc

2 repair and that he was filing a formal complaint to protect himself from a termination of service by Cabot. In its Answer, Cabot denied generally all of the material allegations contained in the complaint and stated that Complainant had been delinquent in the payment of his gas bill since February 1984, and that during April 1984 Complainant's monthly budget payment was increased from $57 to $201 on the basis of Complainant's prior usage. Cabot further answered that it had attempted to work with Complainant during the summer of 1984 on a payment plan whereby Complainant could cure his substantial payment delinquency over several months while remaining a budget payment plan customer. Cabot further answered that on August 10, 1984, Complainant orally agreed to a resolution of this dispute, but refused to allow Cabot to test his gas line for possible leaks and his gas meter for possibly inaccurate readings. Cabot stated that on September 19, 1984, Complainant did permit a leak test to be made, the result of which was positive, and Complainant's gas meter was removed pending satisfactory repair of Com- plainant ' s gas line by Complainant. According to Cabot, subsequent leak tests on September 21, 1984, proved negative and Complainant's meter was reinstalled. However, Cabot also stated that on September 21, 1984, Complainant refused to sign a written agreement embodying the terms of the oral agreement reached between Complainant and Cabot on August 10, Finally, Cabot answered that at the time the Answer was prepared Complainant was delinquent in his payments to Cabot in the amount of $1, By order entered December 14, 1984, this matter was set for hearing on January 9, 1985, at 1O:OO a.m., EST, before Hearing Examiner Arnold 0. Weiford. The hearing was called as scheduled and appearances taken. The Complainant acted as his own counsel, Cabot appeared by John Philip -2-

3 Melick, Esq., Jackson, Kelly, Holt & O'Farrell, and the Commission Staff was present by Daniel L. Frutchey, Esq., of the Legal Division. Refer- ences to the transcript of the hearing are by page number (e.g., "Tr., p. 1"). EVIDENCE Complainant testified on his own behalf and also presented three additional witnesses. complainant repeated in greater detail the alle- gations contained in his complaint. Complainant recalled that the first leak was caused by the installation of a fence by his neighbor and had been satisfactorily repaired in 1982 or (Tr., pp. 7-8). Complain- ant testified that, with respect to a second leak, he had been informed by Cabot personnel working on another project in the area that Complainant would not be responsible for his gas bill "if there was a leak." (Tr., p. 10). Complainant recounted a conversation he had had with Mr. John Cabot. Cabot's Senior Vice President, in which Mr. Cabot assured Complainant that local Cabot employees would attempt to ''work something out.'' 12-13). (Tr., pp. Frederick Carter, Complainant's son, testified that he had smelled a gas leak in Complainant's home for approximately two years, that Complain- ant had complained repeatedly to Cabot about the leak and about his bill, and that he and complaint had repaired Complainant's gas line around August (Tr., pp ). Frederick Carter also testified that he has a heart condition. (Tr., p. 36). Larry F. Carter, Complainant's son, testified that he is - disabled and on Social Security disability allowance. Larry F. Carter testified at length about the alleged agreements between Complainant and various Cabot -3-

4 personnel, and also confirmed that there was a leak in or around Complainant's premises and that Complainant had received high gas bills. (Tr., pp ). Olivia Burger testified that Complainant had smelled gas in his home and had complained to Cabot for approximately two years. (Tr., pp ). Cabot's first witness was Mr. Mark Lee Hudnall, a Regional Coordinator for Cabot, whose area of responsibility includes the Complainant's residence. (Tr., p. 49). Mu. Hudnall sponsored a table (Cabot Exhibit 1) which detailed Complainant's account history beginning April 27, 1983, and ending December 31, Mr. Hudnall testified that Complainant was a budget plan customer of Cabot whose payments were formerly $100 per month, were reduced to $57 per month, and then increased to $201 per month ir: April (Tr., pp ). According to Mr. Hudnall, the reductior from $100 to $57 per month was occasioned by a slow or stopped meter whicf was replaced on February 24, (Tr., p. 53). Mr. Hudnall stated that Complainant was not billed for gas which passed through the meter, but which failed to register because of the meter's impaired condition. (Tr., p. 54). Mr. Hudnall testified that in April 1984 Cabot recalculatec Complainant's $57 monthly payment to $201 because of Complainant's substantial payment delinquency. (Tr., p. 55). Mr. Hudnall stated that beginning in August 1984 Complainant was taken off Cabot's budget payment plan and billed for current usage plus past delinquency because of hi: failure to make the "settle-up" payment set forth on the July 1984 bill, (Tr., p. 56). Mr. Hudnall also testified about negotiations with Complainant thal had begun on August 10, Mr. Hudnall testified that on that datt m m -4-

5 Complainant had agreed to cure his delinquency over the next four or five months but that Complainant refused to permit Mr. Hudnall to conduct a leak and meter accuracy test on that date. (Tr., p. 57). Mr. Hudnall testified that the first leak, allegedly caused by Complainant's neighbor Don Taylor, was on Cabot's side of the meter and could not have affected Complainant's meter reading or bill. (Tr., p. 58). Mr. Hudnall next testified about the events in September of Specifically, he stated that on September 19, 1984, a scheduled inter- ruption of service occurred in the Kimberly area and that when a Cabot employee notified Complainant that gas service would be resumed, Complain- ant mentioned the possibility of a gas leak. According to Mr. Hudnall, Complainant at that time permitted a leak test to be conducted, the results of which were positive and indicated a gas leak on Complainant's side of the meter. The Complainant's meter was removed pending his repair of the leak. (Tr., pp ). meter was reinstalled on September 21, that the leak had been repaired. (Tr., p. 62). the Complainant's current delinquency is $1,276.29, Mr. Hudnall testified that Complainant's 1984, upon Cabot's confirmation Mr. Hudnall stated that and that Cabot had fully complied with all relevant provisions of Rule 4.08 of the Com- mission's Rules and Regulations for the Government of Gas Utilities and Gas Pipeline Safety ("Gas Rules"). (Tr., pp ). Mr. Geoffrey 0. Lubbock, Cabot's Manager in Oak Hill, also testified - ON and further explained Cabot's Exhibit 1. After confirming the accuracy of Mr. Hudnall's testimony and recounting his own direct contact and conver- sations with the Complainant, Mr. Lubbock explained that budget plan customers have their monthly payments recalculated in June of each year. CTr., pp ]. A "settle-up" bill is then sent in July to each budget -5- D

6 ~~ ~ ~~~ plan customer. (Tr., p. 96). Mr. Lubbock stated that Complainant was removed from the budget payment plan because he failed to satisfy his July 1984 bill, and beginning in August 1984 Complainant was billed for the entire amount of his delinquency plus his current usage. (Tr., pp ). Mr. Lubbock explained that, under Cabot's tariff, a customer DISCUSSION Upon the filing of the complaint, this matter became a "disputed bill" within the meaning of Gas Rule Although the transcript in this proceeding is quite lengthy and it appears that many (not necessarily relevant) facts are in dispute, this matter is one which is easily resolved under the Gas Rules and Cabot's tariff. The Hearing Examiner finds that the first leak, testified to at length by the Complainant, has no relevance to this proceeding. Mr. Hudnall testified that this leak, allegedly caused by Complainant ' s neighbor, Don Taylor, was on Cabot's side of the meter and that no gas which passed through that leak was billed to Complainant. (Tr., p. 58). Therefore, only the second leak, which apparently was repaired between September 19 and 21, 1984, must be addressed. Complainant does not dispute the amount of his current payment delinquency. Instead, Complainant maintained in his complaint and throughout the hearing that this delinquency was allowed to build up through the negligency of Cabot in responding to Complainant s request for a leak investigation. (Tr., p. 108). However, Complainant produced no record of any leak complaint, and Mr. Hudnall stated that, had a leak -6- I

7 N - complaint been made. Cabot would have responded immediately for reasons of safety. (Tr., p. 62). The Hearing Examiner finds that Complainant made no complaint about a leak to Cabot prior to August 10, Complainant does not dispute that when his meter was removed on September 19, 1984, a leak was detected in his facilities. (Tr., p. 22). This was confirmed by the fact that the meter was replaced on September 21, 1984, upon Cabot's confirmation that the leak had been repaired. One of Complainant's witnesses also testified that he helped repair Complainant's gas line, apparently between these two dates. (Tr., p. 34). Customers are financially responsible for all gas which passes through the meter and into their own facilities. Under Gas Rule 5.04(4), customers are responsible for the installation and maintenance of their own service lines. It is clear from the record that Complainant's high gas consumption is attributable to the leak which he and his son repaired between September 19 and 21, (Tr., pp. 22, 34). Under Gas Rule 3.02(1), "[a111 gas sold by a utility shall be charged for by meter measurements." Complainant made no allegation that his meter failed to register accurately the amount of gas which passed through it, and he is therefore responsible for that gas whether it was used in his home or leaked through his inadequately maintained service line. Complainant and Complainant's witnesses offered a great deal of confusing and contradictory testimony on an alleged modification of this rule by unnamed Cabot employees. See, e.g., (Tr., pp ). However, the Hearing Examiner is unable to find on the basis of the record evidence that such a conversation ever took place. In any event, the preponderence of Complainant's own evidence standing in isolation indicates that Complainant was told only that he would not be responsible for a leak or -7-

8 malfunction in Cabot's facilities. See, e.g., (Tr., p. 43). conforms to Gas Rule Indeed, this The Hearing Examiner must therefore conclude that Complainant is responsible for the full amount of his payment delin- quency. Complainant raises as a defense to his delinquency the failure of Cabot to notify Complainant that his status as a budget payment plan customer had been terminated in August However, under Cabot's filed tariff as approved by this Commission, Cabot was under no obligation to so notify Complainant. (See, First Revision of Original Sheet No. 21-A, August 1, 1984, attached as Appendix A to this Recommended Decision). Hearing Examiner therefore finds that Complainant was not excused by the failure of Cabot to notify him of his termination as a budget payment plan customer. By his own admission, as reflected in the last paragraph of his complaint, Complainant initiated this proceeding in order to foreclose Cabot's termination of service under Gas Rule In order to expedite this matter, the Hearing Examiner has determined that Cabot has more than fully complied with the provisions of Gas Rule 4.08 and is therefore entitled to discontinue Complainant's service: Complainant has received numerous Forms No. 14, some of which he brought to the hearing. Gas Rule 4.08(1)(A)l. (Tr., p. 102). Complainant was personally contacted on August 10, 1984, and September 21, 1984, at his residence. Gas Rule 4.08(1)(A)l. The.(Tr., pp. 56, 62). Under Gas Rule 4.08(1)(A)2, Complainant was entitled to a discussion with Cabot as to a settlement of his delinquency on a -8-

9 deferred payment plan. Those meetings took place on both August 10, 1984, and September 21, 1984, at which later time Complainant refused to sign a written deferred payment plan. (Tr., p. 62). Cabot has also fully complied with its requirements under Gas Rule 4.08(1)(A)3, and in fact has been extremely lenient with Complainant in attempting to keep him on the budget payment plan while allowing him to cure his delinquency. (Tr., pp ). Because Cabot has fully complied with Gas Rule 4.08(1) (A12 and 3 in attempting to institute a deferred payment agreement with Complainant, no analysis is required under Gas Rule 4.08(1)(A)4 as to whether termination would be "especially dangerous to the health or safety of a member of Complainant's household." Had Cabot not made those attempts, a termination of service could not be made prior to March 1, Complainant is less that 65 years of age, and, although complainant' s sons are purportedly "disabled," Complainant offered no evidence that any member of his household is "phys- ically, mentally, or emotionally incapacitated." Gas Rule 4.08(1)(A)5. No other provision of Gas Rule 4.08 is relevant to this proceeding. FINDINGS OF FACT 1. In 1982 or 1983, a gas leak occurred on Cabot's side of meter which may have been caused by Complainant's neighbor, one the Dor Taylor. Complainant was never billed for the gas loss caused by that leak, and that leak is of no relevance in this proceeding. -9-

10 2. Prior to April 1984, Complainant was a budget payment plan customer of Cabot paying $57 per month for gas service. 3. During April 1984, and on the basis of past usage, Cabot recalculated Complainant's budget monthly payment and determined that that payment should be revised to $ On May 3, 1984, Cabot sent the first $201 monthly bill to Complainant for service to be rendered during May Subsequent to Complainant's receipt of that May 1984 bill, Complainant appeared at Cabot's Oak Hill, West Virginia, offices and discussed his payment delinquency and the recalculation of his budget plan payments with a Cabot service employee. 6. During late July or early August 1984, Complainant contacted Mr. John Cabot, the Senior Vice President of Cabot Corporation, by telephone, at which time Mr. Cabot told Complainant that he would ask Cabot employees to investigate Complainant's problem. 7. Shortly after that conversation, Complainant was contacted by Mr. Geoffrey Lubbock, Cabot's local Oak Hill manager, who explained to Complainant the recalculation of Complainant's monthly budget plan payment and scheduled a meeting between Complainant and Cabot personnel at which time a possible resolution of Complainant's delinquency would be discussed. 8. On August 10, 1984, Mr. Hudnall and another Cabot service employee met with Complainant in Complainant's home at which time Complainant's delinquency was explained to Complainant and Complainant orally agreed to cure his payment delinquency over four or five months in addition to paying his regular $201 monthly bills. m -10-

11 -11- t 9. At that August 10, 1984 meeting, Complainant refused to allow a leak test or meter test to be conducted. 10. On September 19, 1984, Complainant's gas meter was removed because of a confirmed leak in his gas line. 11. Between September 19, 1984, and September 21, 1984, Complainant repaired the leak in his gas line. 12. On September 21, 1984, Complainant refused to sign a written agreement embodying the terms of the oral agreement reached between Complainant and Cabot on August 10, As of December 31, 1984, Complainant owes Cabot $1, CONCLUSIONS OF LAW 1. Under Gas Rules 3.02(1) and 5.04(4), Complainant is responsible for the entirety of his $1, payment delinquency. 2. Complainant was properly discontinued as a budget plan payment customer by Cabot for failure to pay his July 1984 bill. Appendix A. 3. Cabot has complied to date with every relevant provision of - Gas Rule 4.08 and is therefore entitled to terminate Complainant's service provided that such termination is made in accordance with all other material provisions of Gas Rule Complainant shall have five (5) days after the date that this Order becomes final in which to pay Cabot the full amount then due and owing. If that payment is not received, Cabot may terminate Complainant's service immediately.

12 ~~~ ORDER IT IS, THEREFORE, ORDERED that the complaint of Fred Carter against Cabot Corporation filed on October 25, 1984, be, and it hereby is, dismissed. The Executive Secretary is hereby ordered to serve a copy of this order upon the Commission by hand delivery, and upon all parties of record 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 within 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 ordered stayed or postponed by the Commission. Any party may request waiver of the right to file exceptions to a Hearing Examiner's Order by filing an appropriate petition in writing with the Secretary. No such waiver will be effective until approved by order of the Commission, nor shall any such waiver operate to make any Hearing Examiner's Order or Decision the order of the Commission sooner than five (5) days after approval of such waiver by the Commission. AOW: jas Arnold 0. Weiford 4 Hearing Examiner WN

13 Appndix A.k 1 1 '. CABOT CORPORATION n. Charleston,, West Virginia First Revision of Original Sheet No. 21-A PSC of WV No. 1 P- ~ The.monthly budget payment, which shall be based on the estimated annual gas utility service bill of the customer, shall not be construed by the customer as a guaranty of assurance that the total actual charges will not exceed such estimate. The Company may, at any time, submit a revised estimate to the customer whenever, in the Company's judgment, such revision is deemed advisable, (Budgets will be reviewed and recalculated at least twice a year.) The billing-, under this budget plan of payment, is for the convenience of the customer. Bills will be rendered at the regular billing dates and will show the amount budget customers are to pay. The bill will also show the actual gas used and the amount calculated at the applicable rate contained in the Company's tariff. In addition, such bills will show the balance of the customer's account. This budget plan will be cancelled and the total account balance shall become due, or in the event of a credit balance such balance shall be refunded, under the following circumstances: 1. Discontinuance of service at customer's request. 2. Discontinuance of this budget plan at customer's request. 3. Termination of service for non-payment of bills pursuant to proper notice as defined in the Rules and Regulations of.the Public Service Commission of West Virginia; or 4. The customer fails to pay a budget payment when due. (c) Change :) Issued May 31, 1984 (C) Effective August 1, 1984 ISSUED BY: keoffrey 0. Lubbock. Manager, Gas Utility. Issued by authority of General Order No of the Public Service.- Commission of West Virginia dated May 23, 1984.