Kent County Water Authority v. State, Island Division of Public Utilities and Carriers
| Decision Date | 10 February 2014 |
| Docket Number | C. A. PC-2013-0270 |
| Parties | KENT COUNTY WATER AUTHORITY v. STATE OF RHODE ISLAND DIVISION OF PUBLIC UTILITIES AND CARRIERS and GREGORY M. DECUBELLIS |
| Court | Rhode Island Superior Court |
For Plaintiff: Patrick J. Sullivan, Esq.
For Defendant: John A. Pagliarini, Jr., Esq. Leo J. Wold, Esq.
Kent County Water Authority (KCWA) brings this appeal from a decision of the Rhode Island Division of Public Utilities and Carriers (Division). For the reasons set forth below, this Court affirms the decision of the Division. Jurisdiction is pursuant to G.L. 1956 § 42-35-15.
Gregory M. DeCubellis (Mr. DeCubellis) purchased his family home at 31 Deer Run Drive, West Greenwich, Rhode Island, designated as Lot 16-4 on Assessor's Plat 2 (Property) in 2005. (Division App. at 50, 67.) The Property is situated at an elevation of approximately 425.9 feet above sea level and is currently supplied water by two wells. Id. at 55 71.
In May 2005, the developer of Deer Run Estates requested that KCWA provide water service to the curb stop of the Property [1] as well as the four other homes in the development. Id. at 19 60. KCWA initially denied the request on the grounds that the lots' water pressures fell below its minimum thirty-five pounds per square inch (psi) requirement.[2] Nevertheless, in September 2005, KCWA approved the request with stipulations, including that "[n]o more than 8 houses per year will be connected to the public water system"; and that the developer would "provide deed restrictions acceptable to [KCWA] related to approval of service with individual booster pumps for Lots 16, 17, 18, and 19, " as well as "provide suspense service to the 5 existing homes on Deer Run Drive more specifically delineated as AP-2 Lot Numbers, 16-1, 16-2, 16-3, 16-4, and 16-5." Id. at 107-08. Pursuant to the approval, KCWA installed a water line in front of the Property, leaving a blue plastic tube sticking out of the ground in front of the Property. Id. at 54.
On July 11, 2011, Mr. DeCubellis applied to KCWA for a water meter after retaining a plumber and a contractor to complete the suspense service connection from the curb stop to the Property. Id. at 113. The next day, KCWA denied the request in writing, noting that "[t]he limit elevation for [the Property's gradient] is 410 feet." (Division App. at 169.) Specifically, because the Property is located at 425.9 feet above sea level, the water pressure at the house is approximately twenty-eight psi, which falls below KCWA's minimum mandatory pressure standard of thirty-five psi. Id.
On August 7, 2011, Mr. DeCubellis requested that the KCWA reconsider its decision, and on August 10, 2011, KCWA reaffirmed its decision on the grounds that the Property "is located above the serviceable elevation limits contained in Kent County Water Authority policy."[3] Id. at 171. Subsequently, Mr. DeCubellis appealed KCWA's decision to the Division.
On December 1, 2011, Alberico Mancini, a Division Public Utilities Engineer Specialist (Hearing Officer), sent a letter to KCWA stating that "[t]he Division believes that KCWA is able to satisfy the Division's 20 psi minimum pressure requirement and, therefore, should provide water service to the property." Id. at 172. This opinion was based upon the Division's Rules and Regulations Prescribing Standards for Water Utilities, which provides that water utilities must maintain normal operating pressures of twenty psi at a minimum, as well as Mr. DeCubellis's plan to install a booster pump to increase the Property's pressure to thirty-five psi. Id. KCWA responded to the Division with a letter on December 8, 2011, arguing that the Division should have applied KCWA Rules and Regulations rather than its own guidelines. Id. at 173.
The Division conducted public hearings regarding Mr. DeCubellis's complaint on August 22 and October 10, 2012. Mr. DeCubellis testified in support of his complaint at the August hearing. June Swallow, Chief of the Office of Drinking Water Quality for the Rhode Island Department of Health (RIDOH), and Timothy Brown, General Manager and Chief Engineer of KCWA, testified in support of KCWA at the August hearing. In addition, Russell Houde, Jr., a professional design engineer, testified as an expert witness for KCWA at both hearings and also submitted written testimony.
Mr. DeCubellis testified that he purchased the Property in 2005, and that in 2006, KCWA installed suspense service in front of his house and others in the development. (Hr'g Tr. 17-20, Aug. 22, 2012.) In addition, Mr. DeCubellis explained that his Property is currently supplied water by two wells but that the wells tend to "go dry" during the summer, posing a "grave inconvenience" for his family. Id. at 20-22. He described hiring a plumber and contractor to connect the Property to the curb service installed by KCWA and stated that he had assumed his house satisfied any permitting requirements for a connection permit. Id. at 29-31, 33-35.
Ms. Swallow testified regarding RIDOH's licensing system for the state's water utilities. Id. at 55-56. She stated that a license could be suspended or revoked for failing to comply with RIDOH's Rules and Regulations Pertaining to Public Drinking Water (RIDOH Rules and Regulations). Id. at 56. Ms. Swallow noted that § 4.1 of the RIDOH Rules and Regulations states that water systems "should be designed consistent with Ten State Standards and AWWA Standards." Id. Specifically, under the Ten State Standards, water systems should maintain a minimum "operating pressure" of thirty-five psi and a minimum pressure of twenty psi "under all conditions of flow." Id. at 59. In addition, she testified that the Ten State Standards do not allow private booster pumps in individual residences. Id. at 60.
On cross-examination, Ms. Swallow stated that RIDOH does not review individual service connections for compliance. Id. at 68, 70. In addition, Ms. Swallow testified that RIDOH would not consider a private booster pump like the ones KCWA approved at Deer Run Estates a "violation, " and that RIDOH was unlikely to get involved unless the booster pumps "created an unsafe condition." Id. at 72-73. Moreover, Ms. Swallow stated that an individual home receiving water at thirty psi would not be "ideal, " but it "would be fine." Id. at 74-75. She noted that health concerns arise when the pressure at an individual home is below twenty psi, and only at that point would RIDOH intervene. Id.
Mr. Brown testified regarding his own interpretation of the Division's Rules, expressing concern that they could theoretically be interpreted to permit a pressure variation down to ten psi, causing significant health problems. Id. at 89-93. In addition, Mr. Brown testified that KCWA's maximum elevation for service, 410 feet, is the highest point at which KCWA would receive thirty-five psi, and, at between 425 and 426 feet, Mr. DeCubellis's home would provide twenty-eight psi "on a good day." Id. at 93-94. Regarding the suspense service installed at Mr. DeCubellis's Property, Mr. Brown testified that it was a "non-use service[]" and that property owners in the development were not guaranteed service. Id. at 93-94. Mr. Brown also testified that KCWA allowed the use of booster pumps in 2005 pursuant to the RIDOH regulations in effect at that time, and that in 2012, the regulations did not permit such booster pumps. Id. at 98-99.
On cross-examination, Mr. Brown stated that although KCWA's minimum pressure requirement in 2005 was thirty-five psi, several lots in Deer Run Estates were granted water service even though they did not satisfy the minimum requirement. Id. at 147-51. He also stated that other homes in KCWA's service area received water service with less than the minimum pressure requirement but did not know how many. Id. at 154-55.
Mr. Houde testified regarding a hydraulic model he created for Deer Run Estates in 2004 to determine various flows and pressures throughout the water system. Id. at 184, 189. At the conclusion of the August 22, 2012 hearing, Mr. Houde prepared prefiled testimony regarding the model, which was accepted into the record at the October 10, 2012 hearing. (Hr'g Tr. 9-10, Oct. 10, 2012.) The purpose of the model, as explained by Mr. Houde in his prefiled testimony, was to determine if KCWA could provide thirty-five psi to the customer under average demand conditions, and twenty psi under all other demand conditions. (Houde Test. 4, Sept. 18, 2012.) The model assessment report created by Mr. Houde concluded that elevations above 415 feet on the development would not be able to meet the minimum pressure demand of thirty-five psi under average conditions. Id. at 5-6. Thus, Mr. Houde opined that a residential service connection at the Property would have an adverse effect on the entire public water system, potentially causing "pollutants or contaminates to flow back into the public water system." Id. at 6. Mr. Houde further testified that he does not utilize the Division's regulations because they conflict with standard practice and RIDOH regulations, and the twenty psi requirement is "unclear." Id. at 9.
Following the October 2012 hearing, both parties submitted memoranda. In his memorandum, Mr. DeCubellis requested that the Division grant him a waiver from KCWA's minimum pressure standard or find KCWA Reg. § 2.2.11.2 to be invalid. In support of his request, Mr. DeCubellis argued that: 1) KCWA unreasonably denied his request for service because it created an expectation of providing water service by connecting "similarly situated" neighbors; 2) RIDOH's recommended thirty-five psi standard is not mandatory; and 3) KCWA violated G.L. 1956 § 39-2-3(a) by subjecting his...
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