2015-AD-70 BEFORE THE MISSISSIPPI PUBLIC SERVICE COMMISSION FILED AUSTIN D. (DAN) CHECK Ngy 12 2015 VS. DALEWOOD SEWER DISTRICT SD 100197400 MISS.PUBLICSERVICE COMMISSION IN RE: REQUEST FOR CEASE AND DESIST ORDER BY, AUSTIN D. (DAN) CHECK, TO RESPONDENT, DALEWOOD SEWER DISTRICT AND TOWN OF MARION, MISSISSIPPI. TO REQUEST FOR CEASE AND DESIST ORDER COMES NOW Respondent Town of Marion, Mississippi, by and through its counsel of record, Copeland Cook Taylor & Bush, P.A., and would Answer and/or Respond to the Request for Cease and Desist Order filed on April 29, 2015 by Austin D. (Dan) Check as follows: FIRST AFFIRMATIVE MATTER The "Request" and/or "Complaint" fails to state a claim upon which relief can be granted and should be dismissed pursuant to Commission Rule 11. SECOND AFFIRMATIVE MATTER Austin D. (Dan) Check has failed to "affirmatively show that the complainant has a direct and substantial interest in the subject matter of the complaint that will be determined by the proceedings " as required by Commission Rule l1. Page 1 of 6
THIRD AFFIRMATIVE MATTER or. Austin D. (Dan) Check has failed to assert either a "colorable interest...... an adverse effect..." warranting any relief. FOURTH AFFIRMATIVE MATTER Austin D. (Dan) Check lacks standing. FIFTH AFFIRMATIVE MATTER Austin D. (Dan) Check has alleged no injury or threat of an injury. SIXTH AFFIRMATIVE MATTER Austin D. (Dan) Check has suffered no injury, loss, damage, or harm. SEVENTH AFFIRMATIVE MATTER Austin D. (Dan) Check is not a resident of the Town of Marion, Mississippi nor does he reside or own real property in the area serviced by the Dalewood Sewer District. EIGHTH AFFIRMATIVE MATTER The Commission should dismiss this matter without a hearing pursuant to Commission Rule 11 because it is " not necessary in the public interest or for the protection of substantial rights." NINTH AFFIRMATIVE MATTER To the extent the "Request" and/ or "Complaint" seeks to have the Commission reconsider an earlier decision, order, ruling or judgment,it is barred by the doctrine of collateral estoppel. Page 2 of 6
TENTH AFFIRMATIVE MATTER The "Request" and/or "Complaint" is so vague as it fails to provide reasonable and adequate notice as to the claims asserted and/or the basis for such claims, if any. Without such reasonable notice the Town of Marion cannot properly respond to or defend against such claims. Such vague allegations are inconsistent with the due process requirements of the Mississippi and United States Constitutions. ELEVENTH AFFIRMATIVE MATTER Austin D. (Dan) Check does not have the right to seek or obtain a cease and desist order. TWELFTH AFFIRMATIVE MATTER And now answering the allegations of the "Request" and/or "Complaint", the Town of Marion, Mississippi would respond as follows: Except as specifically admitted, the allegations, statements, accusations, assertions, musings, and conclusions contained in the Request for Cease and Desist Order filed on April 29, 2015 by Austin D. (Dan) Check are denied. The Town of Marion, Mississippi admits that there is a construction project to connect the Town of Marion's sewage collection system to Dalewood Sewer District's treatment facility. It is further admitted the Town of Marion will pay a fee to Dalewood Sewer District for processing their sewage. It is further admitted the Request for Cease and Desist Order filed on April 29, 2015 that attached as Exhibit "A" to is an Official Opinion of the Mississippi Attorney General approving the Interlocal Agreement between the Town of Marion and the Dalewood Sewer District which includes an unsigned copy of the agreement which speaks for itself. It is further admitted that attached to the Request for Cease and Desist Order filed on April 29, Page 3 of 6
2015 is an aerial photograph, the first page of the Public Hearing held on May 16, 2002 before the Mississippi Public Service Commission on Dalewood Sewer District 's application for a certificate of public convenience and necessity, a cover letter and resume of Tammy Parker, a copy of a specimen check for $50,000.00made payable to the Small Business Owner United States of America, a April 27, 2015 "Complaint/Request for Cease and Desist Order of Hook-Up" with attachments which speak for themselves. The allegations, statements, accusations, assertions, musings, and conclusions contained in the April 27, 2015 "Complaint/Request for Cease and Desist Order of Hook-Up" are denied except it is admitted that attached thereto is a Pre award Compliance Review Report and an Information Regarding Proposed Wastewater Projects to: The Mississippi Office of Pollution Control which speak for themselves. It is specifically denied that Dan D. (Dan) Check or anyone else is entitled to the entry of a "CEASE AND DESIST ORDER" or the granting of any other relief whatsoever. THIRTEENTH AFFIRMATIVE MATTER Each and every material allegation of the "Request" and/or "Complaint" which has not been specifically admitted, regardless of paragraph number or lack thereof, or paragraph letter or lack thereof, is denied. FOURTEENTH AFFIRMATIVE MATTER Austin D. (Dan) Check has failed to assert a legal or factual basis for the issuance of a cease and desist order by the Commission. Page 4 of 6
FIFTEENTH AFFIRMATIVE MATTER Austin D. (Dan) Check has failed to allege a potential threat of any loss, damage, injury, or harm. SIXTEENTH AFFIRMATIVE MATTER A decision by the Commission will not affect an interest that Austin D. (Dan) Check has in his property. And now having fully answered the "Request" and/or "Complaint" filed herein, the Town of Marion, Mississippi requests to be dismissed with its costs. RESPECTFULLY SUBMITTED, TOWN OF MARION, MISSISSIPPI, RESPONDENT BY: PELAND, COOK, TAYI BUSH, PA / JAMES E. WELCH, JR. Mississippi Bar No. 7090 JAMES E. WELCH, JR. COPELAND, COOK, TAYLOR & BUSH P.O. Box 10 Gulfport, Mississippi 39502-0010 telephone (228) 863-6101 telecopier (228) 863-9526 Page 5 of 6 * Electronic Copy * MS Public Service Commission * 3/2/2018 * MS Public Service Commission * Electronic
CERTIFICATE I, JAMES E. WELCH, JR., do hereby certify that I have this date mailed, postage prepaid, a true and correct copy of the within and foregoing Answer to the following at their record mailing address: Austin D. (Dan) Check P.O. Box 3271 Meridian, MS 39303 Joe Williams Dalewood Sewer District P.O. Box 6 Lauderdale, MS 39335 SO CERTIFIED, this the i, 2LOl5 JAMES E. WEL, JR. Mississippi Bar No 90 Page 6 of 6