Central West Virginia Refuse, Inc. v. Public Service Com'n of West Virginia, 21750

• Decision Date: 13 December 1993
• Docket Number: No. 21750,21750
• Citation: 190 W.Va. 416,438 S.E.2d 596
• Court: West Virginia Supreme Court
• Parties: CENTRAL WEST VIRGINIA REFUSE, INC., Appellant, v. PUBLIC SERVICE COMMISSION OF WEST VIRGINIA, Appellee.

Page 596

438 S.E.2d 596

190 W.Va. 416

CENTRAL WEST VIRGINIA REFUSE, INC., Appellant, v. PUBLIC SERVICE COMMISSION OF WEST VIRGINIA, Appellee.

No. 21750.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 22, 1993.

Decided Dec. 13, 1993.

Syllabus by the Court

1. The detailed standard for our review of an order of the Public Service Commission contained in Syllabus Point 2 of Monongahela Power Co. v. Public Service Commission 166 W.Va. 423, 276 S.E.2d 179 (1981), may be summarized as follows: (1) whether the Commission exceeded its statutory jurisdiction and powers; (2) whether there is adequate evidence to support the Commission's findings; and, (3) whether the substantive result of the Commission's order is proper.

2. W.Va.Code, 24-2-3 (1983), clearly and unambiguously gives the Public Service Commission the power to reduce or increase rates whenever it finds that the existing rate is unjust, unreasonable, insufficient, or unjustly discriminatory or otherwise in violation of any provision of W.Va.Code, 24-1-1, et seq.

3. " 'When a statute is clear and unambiguous and the legislative intent is plain the statute should not be interpreted by the courts, and in such a case it is the duty of the courts not to construe but to apply the statute.' Point 1, syllabus, State ex rel. Fox v. Board of Trustees of the Policemen's Pension or Relief Fund of the City of Bluefield, et al., 148 W.Va. 369 [135 S.E.2d 262 (1964) ]." Syllabus Point 1, State ex rel. Board of Trustees v. City of Bluefield, 153 W.Va. 210, 168 S.E.2d 525 (1969).

4. When the Public Service Commission is exercising its rate-making authority under W.Va.Code, 24-2-3 (1983), its decisions are not subject to the doctrines of stare decisis or res judicata simply because rate making is a legislative function.

5. " 'The principle is well established by the decisions of this Court that an order of the public service commission based upon its finding of facts will not be disturbed unless such finding is contrary to the evidence, or is without evidence to support it, or is arbitrary, or results from a misapplication of legal principles.' United Fuel Gas Company v. Public Service Commission, 143 W.Va. 33 [99 S.E.2d 1 (1957) ]." Syllabus Point 5, Boggs v. Public Service Commission, 154 W.Va. 146, 174 S.E.2d 331 (1970).

6. "Under the provisions of W.Va.Code § 24-2-4a (1980 Replacement Vol.) a public utility seeking an increase in rates and charges has the burden of showing that the proposed increase is just and reasonable." Syllabus Point 4, Chesapeake & Potomac Telephone Co. v. Public Service Commission, 171 W.Va. 494, 300 S.E.2d 607 (1982).

Arden J. Curry, Pauley, Curry, Sturgeon & Vanderford, Charleston, for appellant.

Richard M. Allen, Public Service Comm'n of West Virginia, Charleston, for appellee.

MILLER, Justice:

Central West Virginia Refuse, Inc., (Central), appeals a final order of the Public Service Commission (PSC), dated March 10, 1993, that reduced the base tariff rate Central could charge its customers from $27.45 to $21.58 per ton. On appeal, Central alleges two errors: (1) the PSC exceeded its statutory authority when it refused to follow its earlier decision in the original tariff case involving Central, and (2) the evidence was inadequate to support several of the PSC's findings. We have reviewed the record and find no error; accordingly, we affirm the final order of the PSC.

I.

Central owns and operates a solid waste disposal facility in Braxton County. In 1989, the PSC was given jurisdiction over the establishment and enforcement of rates and fees charged by commercial solid waste facilities. ¹

In July of 1989, Central was required to file an original tariff request with the PSC. The application filed by Central, which was assigned Case No. 89-405-SWF-T, requested a rate of $32.00 per ton. This amount included a base rate of $29.25 per ton, a State assessment fee of $1.25, a county assessment fee of $0.50 per ton, and a solid waste interim fee of $1.00 per ton, for a total assessment of $2.75. This rate was accepted by the PSC on an interim basis without an audit or review, and, subject to refund, became effective on or after July 1, 1989.

Because staff had not yet conducted its audit, on May 9, 1991, the Administrative Law Judge (ALJ) issued a recommended decision that Case No. 89-405-SWF-T be dismissed from the docket. The PSC did not adopt the ALJ's recommended decision and instead remanded the case for a hearing. After hearings were held, the ALJ recommended that the $29.25 base rate be approved for use on a permanent basis, thus making a refund unnecessary. The PSC fully reviewed the recommended decision and, in its order dated March 13, 1992, reduced the base rate Central could charge to $27.45 per ton or $30.20 per ton including assessments.

On June 6, 1991, Central filed an application to increase its rates at the Braxton County landfill to $50.00 per ton, including all assessments. ² This application was assigned Case No. 91-400-SWF-42A. In a decision dated April 9, 1992, the ALJ determined that the rate established in Case No. 89-405-SWF-T should be used as a floor upon which cost increases should be added because he found the same test year was used in establishing the proper rate in both proceedings. He recommended that the rate per ton be increased to $37.64. Both the staff and Central filed exceptions to this recommended order. Once again, the PSC refused to adopt the ALJ's decision and, instead, ordered Central to charge a base rate of $21.58 per ton plus assessments. Central appeals this order pursuant to W.Va.Code, 24A-8-1. ³

II.

Over a decade ago, in Monongahela Power Co. v. Public Service Commission, 166 W.Va. 423, 276 S.E.2d 179 (1981), we discussed at great length the standard of review this Court will apply in an appeal of an order of the PSC. We adopted a comprehensive standard from a test established by the United States Supreme Court in Permian Basin Area Rate Cases, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968). We incorporated this standard into Syllabus Point 2 of Monongahela Power:

"In reviewing a Public Service Commission order, we will first determine whether the Commission's order, viewed in light of the relevant facts and of the Commission's broad regulatory duties, abused or exceeded its authority. We will examine the manner in which the Commission has employed the methods of regulation which it has itself selected, and must decide whether each of the order's essential elements is supported by substantial evidence. Finally, we will determine whether the order may reasonably be expected to maintain financial integrity, attract necessary capital, and fairly compensate investors for the risks they have assumed, and yet provide appropriate protection to the relevant public interests, both existing and foreseeable. The court's responsibility is not to supplant the Commission's balance of these interests with one more nearly to its liking, but instead to assure itself that the Commission has given reasoned consideration to each of the pertinent factors."

See, e.g., Chesapeake & Potomac Tel. Co. v. Public Serv. Comm'n, 171 W.Va. 494, 300 S.E.2d 607 (1982).

In Chesapeake & Potomac Telephone Co. v. Public Service Commission, 171 W.Va. at 498, 300 S.E.2d at 611, we summarized the detailed standard for our review of an order of the PSC contained in Syllabus Point 2 of Monongahela Power Co. v. Public Service Commission, supra:

"(1) [W]hether the Commission exceeded its statutory jurisdiction and powers; (2) whether there is adequate evidence to support the Commission's findings; and, (3) whether the substantive result of the Commission's order is proper."

III.

Central is not arguing that, as a result of the PSC's actions, it cannot maintain its financial integrity, attract necessary capital, or fairly compensate its investors for the risks they have assumed. Rather, it argues that the PSC abused its statutory power when it failed to follow its earlier decision and that there was insufficient evidence to support several of the PSC's findings.

Central's main argument is that because the staff used the same test year, field information, and audit information in both Case No. 89-405-SWF-T and Case No. 91-400-SWF-42A, the ALJ did not err when he used the rate established in Case No. 89-405-SWF-T as a floor upon which an upward adjustment should be made in Case No. 91-400-SWF-42A. Specifically, Central contends that because no one appealed the order in Case No. 89-405-SWF-T, it was a final order that the PSC had already determined was reasonable; thus, the findings in the first case are entitled to a preclusive effect.

The PSC responds that although the test year used by staff in Case No. 89-405-SWF-T was a starting point in reaching a proper rate in this case, staff did conduct additional financial investigations and filed a separate report. Furthermore, the PSC argues that because the rates established in both proceedings must be reached independently of each other, it is not bound by findings of facts in earlier proceedings. Finally, the PSC maintains that the doctrine of stare decisis does not apply to administrative proceedings.

A.

In essence, Central is contending that the PSC abused or exceeded its legitimate authority under W.Va.Code 24-2-1, et seq., by not adhering to its earlier ruling in Case No. 89-405-SWF-T. The PSC's general powers concerning the establishment of rates for public utilities are found in W.Va.Code, 24-2-3 (1983), which states, in pertinent part:

"The [PSC] shall have the power to enforce, originate, establish, change and promulgate tariffs, rates, joint rates, tolls and schedules for all public utilities.... And whenever the [PSC] shall, after hearing, find any existing rates ... unjust, unreasonable, insufficient or unjustly discriminatory or otherwise in violation of any of the provisions of this chapter, the [PSC] shall by an order fix reasonable...