PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON

Transcription

1 PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON comb wpd At a session of the, in the City of, on the 1 lth day of December, CASE NO W-PC TOWN OF BURNSVILLE, a municipal utility, Burnsville, Braxton County. Petition for consent and approval to allow Town of Burnsville to discontinue water service to an existing customer. COMMISSION ORDER The Commission shall permit a town to terminate service to a restaurant which has not installed a grease trap. The Commission also shall require the town to apply its grease trap policy to all customers in an equal fashion. BACKGROUND On August 16, 2005, the Commission granted the Town of Burnsville s petition to discontinue water service to a restaurant owned and operated by Kwik Pik, Inc., because the restaurant would not install a grease trap. Burnsville was required to give 10 days notice prior to terminating service. Rec. Dec. p. 3 (July 27,2005, final Aug. 16,2005). On August 18,2005, Kwik Pik, by counsel, excepted to the Recommended Decision, asserting, among other things, that the Seventy-Niner Restaurant was not owned or operated by Kwik Pik. Exceptions pp Until Burnsville properly names the restaurant operator, this matter should be stayed or dismissed, Kwik Pik wrote. Id. p. 2. On August 24, 2005, the Commission treated the late exceptions as a petition to reconsider and remanded the case to the ALJ Division. The ALJ conducted a hearing on February 15,2006. Burnsville s utility manager testified that Kwik Pik and the restaurant are the only businesses located on manholes J-2,J-3 and 5-4. Photographs show grease in the manholes. Burnsville s utility manager also testified that grease would build up so that the manhole overflowed into the parking lot. Rec. Dec. p. 5. 1

2 A Health Department witness testified that if grease traps are located properly and cleaned regularly, grease problems would be reduced by a factor of 10 or 20. Id. p. 7. Grease traps are part of the Health Department s sewage design. Id. p. 8. A Health Department regulation, 64 CSR , requires external grease traps for all restaurants with a large quantity of grease and fats in liquid waste. The trap should be within 30 feet of the fixtures served. Id. p. 8. He also testified that the slope of Burnsville s utility lines was shallow, but he was concerned about a grease problem, regardless of slope. Td. The Health Department is not keen on using enzymes, he said. An engineer testified for the restaurant that there was insufficient slope on the utility s lines. Rec. Dec. p. 8. While the Health Department requires a slope of at least four-tenths of an inch over 100 feet, some of the utility lines are sloped 0.33 and The manager of both the Kwik Pik and the restaurant testified that grease is picked up weekly. Rec. Dec. pp Several years ago, after a blockage, and on the advice of Burnsville s utility board and health department, enzymes were put down all the drains, he said. Id. p. 9. Enzymes still are used weekly. Also, the garbage disposal was removed two to three years ago. They use a drainage screen to catch food which may be missed when plates are scrapped into the trash. Id. Food caught on the screen goes to the dumpster, he said. The restaurant, store and utility have been involved in litigation in Braxton County Circuit Court. The Braxton County lawsuit was dismissed with prejudice, and one of its counts concerned noncompliance with Burnsville s grease ordinance, the manager said. Rec. Dec. p. 9. Commission Staff testified that grease should be removed, pursuant to the Health Department regulation. Rec. Dec. p. 10. On May 18,2006, the ALJ recognized that the parties disagree on whether sufficient slope exists, but found more persuasive the uncontroverted evidence that there have been grease blockages in the manholes which solely serve the restaurant and store. Rec. Dec. p. 10. Despite several corrective, but limited actions, grease build up continues, the ALJ concluded. Id. p A grease trap is required for these two businesses to comply with the Health Department regulations, and the PSC s Rules for the Government of Sewer Utilities, 150 C.S.R. Series 5, allow a utility to require customers to conform plumbing to suit the utility s system. Id. p. 11. The ALJ rejected the argument that the PSC does not have jurisdiction, due to the Circuit Court s dismissal of a case. This Commission, not the Braxton County Circuit Court, has the legal authority to determine whether a utility may terminate water service to a customer either for nonpayment or for noncompliance with the utility s operating requirements or this Commission s rules, she wrote. Id. p

3 Thus, the ALJ concluded that Burnsville s requirement to install an external grease trap was reasonable and she recommended that the petition to discontinue water service be granted. Rec. Dec. p. 12. She suggested that Burnsville be permitted to terminate service after providing 10 days notice, upon a final Commission order. Id. On June 2, 2006, Kwik Pik and the 79er excepted to the Recommended Decision, arguing that an order allowing shut-off would violate the Braxton County Circuit Court s November 20, 2003, final order, which dismissed Burnsville s action alleging the same offenses and seeking the same remedy. Exceptions p. 1. They noted that the last sewer line blockage occurred in 2002, and there has been no drainage difficulty since the Braxton County court order. Id. p. 1. They also argued that Burnsville comes with unclean hands, when its own lines do not comply with state health standards for slope. Id. p. 2. The real issues are concealed, they said. This is an extension of the Burnsville Utility Board Director s vendetta against Roger Nettles, they wrote. The W. Va. Public Service Commission is abusing its authority by proxy of Jimmy Pritt. Id. p. 2. On June 9,2006, Staff advised that the Recommended Decision s Findings of Fact and Conclusions of Law are supported by the evidence. Staffs Response p. 1. Staff did not agree that the Braxton County Circuit Court order was binding upon the PSC, writing as follows: The assertion that the Order of the Circuit Court of Braxton County in Case No. 02-C-45 has any relevance to this proceeding is baffling. The clear language of the Order is a judgment satisfying a Municipal B & 0 tax liability. Nothing else is in the Order. Moreover, in Cornwell v. Fairrnont Water Dept., 67 ARPSCWV 526, Case No. 9423, Aug. 7, 1979, adopted, 67 ARPSCWV 531, Sept. 26, 1979, rehearing denied, 67 ARPSCWV 532, Oct. 29, 1979, petition for appeal dismissed by the West Virginia Supreme Court, 67 ARPSCWV 534, June 5, 1980, the Commission noted that it was not a party to a circuit court proceeding and said: Defendant relies on an order of the Circuit Court of Marion County in the matter styled Echo Valley, Inc. v. City of Fairrnont, which involved nearly identical circumstances. That order, however, merely recites the language of W. Va. Code (32) and does not address the question of the Commission s jurisdiction or attempt to resolve any conflicts between that statute and any other statutes involving the jurisdiction of this Commission. In addition,... the mtblic Service Commission 3

4 Commission [was not a party] to that action and... not bound by it. Indeed, our Supreme Court of Appeals said in C & P Tel. Co. v. City of Morgantown, 114 W. Va. 149, 107 S.E.2d 489 (1959): The paramount design of pertinent statutes to place regulation and control of public utilities exclusively with the Public Service Commission has been recognized previously by this Court. Lockard v. City of Salem, 127 W. Va. 237, 32 S.E.2d 568; City of Mullens v. Power Co., 122 W. Va. 179, 7 S.E.2d 870; Mountain State Water Co. v. Town of Kingwood, 122 W. Va. 374, 9 S.E.2d 532; Ex Parte Dickey, 76 W. Va. 576, pt. 3 syl., 85 S.E. 781; Benwoodv. PublicService Commission, 75 W. Va. 127, pt. 5 syl., 83 S.E. 295; Wheelingv. Natural Gas Co., 74 W. Va. 372, pt. 6 syl., 82 S.E (Emphasis added.) Response pp Staff asked the Commission to deny the exceptions. Id. p. 2. On June 14, 2006, Burnsville also argued that the Recommended Decision was supported by the clear weight of the evidence. Burnsville s Response p. 1. The record establishes that there was considerable grease buildup over the years, that the source could only have been Kwik Pik and the restaurant, and that grease continued to build up even after the corrective measures were put in place, Burnsville wrote. Like Staff, Burnsville rejected the argument that the Commission cannot entertain this case because of the order in Braxton County Circuit Court order, writing, - Id. pp The final order in that case is directed toward the B&O tax enforcement and is in no way directed to any ruling or finding by the Court on a discontinuance of service... Further,... the Respondents took no action in the circuit court action after entry of the order. If Respondents truly believed that the circuit court action disposed of any matter in the circuit court suit other than the B&O tax issue, they could have sought a clarification or further ruling from the court. DISCUSSION Kwik Pik and the 79er attached a copy of the Braxton County Circuit Court order to the Exceptions, and, upon review, we agree with Staff and Burnsville that the order is limited to B&O tax matters. We also agree with the ALJ that the PSC, not the Braxton County Circuit Court, has the legal authority to determine whether a utility may terminate water 4

5 service to a customer either for nonpayment or for noncompliance with the utility s operating requirements or PSC rules. There is no dispute that Health Department regulations require a grease trap, and in this case.a Health Department employee testified that he was concerned about the grease problem, regardless of the dispute about the slope of the lines. Tr. p Therefore, the Commission should deny the argument that Burnsville cannot enforce its grease trap policy because its lines are insufficiently sloped. Furthermore, since a grease trap is required by the Health Department regulations, the Commission should reject the allegation that a vendetta is the motivation for this case. Since the PSC is not bound by the Braxton County Circuit Court order, and since a grease trap is required by Health Department regulations, we agree with Staff and Burnsville that the exceptions should be denied. The Commission should adopt the ALJ s recommendation that upon 10 days notice, water service may be terminated to the 79er Restaurant. The Commission also wishes to make clear that Burnsville cannot single out this particular establishment. Statute and rule require Burnsville to apply its grease trap policy to all customers in an equal fashion. FINDINGS OF FACT 1. On August 16, 2005, the Commission granted Burnsville s petition to discontinue water service to a restaurant owned and operated by Kwik Pik, Inc., because the restaurant would not install a grease trap. Burnsville was required to give 10 days notice prior to terminating service. Rec. Dec. p. 3 (July 27,2005, final Aug. 16,2005). 2. On August 18, 2005, Kwik Pik, by counsel, excepted to the Recommended Decision, asserting, among other things, that the Seventy-Niner Restaurant was not owned or operated by Kwik Pik. Exceptions pp Until Burnsville properly names the restaurant operator, this matter should be stayed or dismissed, Kwik Pik wrote. Id. p On August 24,2005, the Commission treated the late exceptions as a petition to reconsider and remanded the case to the ALJ Division. Comm n Order p The ALJ conducted a hearing on February 15, Kwik Pik and the restaurant are the only businesses located on manholes J-2, 5-3 and J-4. Photographs show grease in the manholes, and sometimes the grease would build up so that the manhole overflowed into the parking lot. Rec. Dec. p. 5. ~ 5

6 ~~ 6. Grease traps are part of the Health Department s sewage design. A Health Department regulation, 64 CSR , requires external grease traps for all restaurants with a large quantity of grease and fats in liquid waste. The trap should be within 30 feet of the fixtures served. 7. Although the slope of Burnsville s utility lines is shallow, the Health Department is concerned about the grease problem, regardless of slope. Rec. Dec. pp An engineer testified for the restaurant that there was insufficient slope on the utility s lines. Rec. Dec. p Grease is picked up weekly. Rec. Dec. pp The restaurant, store and utility have been involved in litigation in Braxton County Circuit Court, and a lawsuit there was dismissed with prejudice. Rec. Dec. p Commission Staff testified that grease should be removed, pursuant to the Health Department regulation. Rec. Dec. p On May 18, 2006, the ALJ recognized that the parties disagree on whether sufficient slope exists, but found more persuasive the uncontroverted evidence that there have been grease blockages in the manholes which solely serve the restaurant and store. Rec. Dec. p. 10. Despite several corrective, but limited actions, grease build up continues, the ALJ concluded. _Id. p A grease trap is required for these two businesses to comply with the Health Department regulations, and the PSC s Rules for the Government of Sewer Utilities, 150 C.S.R. Series 5, allow a utility to require customers to conform plumbing to suit the utility s system. Id. p The ALJ rejected the argument that the PSC does not have jurisdiction, due to the Circuit Court s dismissal of a case. _Id. p Thus, the ALJ concluded that Burnsville s requirement to install an external grease trap was reasonable and she recommended that the petition to discontinue water service be granted. Rec. Dec. p. 12. She suggested that Burnsville be permitted to terminate service after providing 10 days notice, upon a final Commission order. Id. 15. On June 2, 2006, Kwik Pik and the 79er excepted to the Recommended Decision, arguing that a PSC order allowing shut-off would violate the Braxton County Circuit Court s November 20,2003, final order, which dismissed Burnsville s action alleging the same offenses and seeking the same remedy. Exceptions p. 1. They also alleged that this PSC case was an extension of the Burnsville Utility Board Director s vendetta against Roger Nettles. 6

7 16. They also argued that Burnsville comes with unclean hands, when its own lines do not comply with state health standards for slope. Id. p On June 9,2006, Staff advised that the Recommended Decision s Findings of Fact and Conclusions of Law are supported by the evidence. Staffs Response p. 1. Staff did not agree that the Braxton County Circuit Court order was binding upon the PSC. Staff asked the Commission to deny the exceptions. Id. p On June 14, 2006, Burnsville also asked the Commission to reject the exceptions, because the record establishes that there was considerable grease buildup over the years, that the source could only have been Kwik Pik and the restaurant, and that grease continued to build up even after the corrective measures were put in place. Burnsville s Response p. 1. Like Staff, Burnsville rejected the argument that the Commission cannot entertain this case because of the order in Braxton County Circuit Court order. CONCLUSIONS OF LAW 1. The Braxton County Circuit Court order relates to B&O tax matters and is not binding upon the PSC. 2. The ALJ correctly states that the PSC, not the Braxton County Circuit Court, has the legal authority to determine whether a utility may terminate water service to a customer either for nonpayment or for noncompliance with the utility s operating requirements or PSC rules. 3. It is undisputed that Health Department regulations require a grease trap, and in this case a Health Department employee testified that he was concerned about the grease problem, regardless of the dispute about the slope of the lines. Therefore, the Commission should deny the argument that Burnsville cannot enforce its grease trap policy because its lines are insufficiently sloped. 4. Since a grease trap is required by state Health Department regulations, the Commission should reject the allegation that a vendetta is the motivation for this case. 5. Since the PSC is not bound by the Braxton County Circuit Court order, and since a grease trap is required by state Health Department regulations, the Commission agrees with Staff and Burnsville that the exceptions should be denied. 6. Statute and rule require Burnsville to apply its grease trap policy to all customers in an equal fashion. 7

8 ORDER IT IS THEREFORE ORDERED that the exceptions are denied. IT IS FURTHER ORDERED that, within 30 days of the date of this order, the 79er Restaurant shall install a grease trap, in compliance with the state Health Department regulations. IT IS FURTHER ORDERED that, if a grease trap is not installed within 30 days of the date of this order, Burnsville may provide a 10-day termination notice to the 79er Restaurant. If a grease trap is not installed by the end of the 10-day notice period, then Burnsville may terminate water service to the 79er Restaurant. IT IS FURTHER ORDERED that this case is and removed from the Commission's docket of active cases. IT IS FURTHER ORDERED that the Commission's Executive Secretary serve a copy of this order upon all parties of record by United States First Class Mail and upon Commission Staff by hand delivery. CLWIsek cb.wpd 8