Sexton v. Public Service Com'n, No. 21147

• Court: Supreme Court of West Virginia
• Writing for the Court: MILLER
• Citation: 423 S.E.2d 914,188 W.Va. 305
• Parties: James K. SEXTON and Barbara Sexton, Appellants, v. PUBLIC SERVICE COMMISSION and Southern Jackson County Public Service District, a Public Utility, Appellees.
• Decision Date: 13 November 1992
• Docket Number: No. 21147

Page 914

423 S.E.2d 914 188 W.Va. 305 James K. SEXTON and Barbara Sexton, Appellants,
v.
PUBLIC SERVICE COMMISSION and Southern Jackson County Public
Service District, a Public Utility, Appellees. No. 21147. Supreme Court of Appeals of
West Virginia. Submitted Sept. 23, 1992.
Decided Nov. 13, 1992.

Page 915

[188 W.Va. 306] Syllabus by the Court

1. " ' "[A]n 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. The Public Service Commission, 143 W.Va. 33, 99 S.E.2d 1 (1957).' Syllabus Point 5, in part, Boggs v. Public Service Comm'n, 154 W.Va. 146, 174 S.E.2d 331 (1970)." Syllabus Point 1, Broadmoor/Timberline Apartments v. Public Service Commission, 180 W.Va. 387, 376 S.E.2d 593 (1988).

Page 916

[188 W.Va. 307] 2. Although construction of a new facility proposed by a utility will often require the taking of private property through eminent domain, in the absence of express statutory language, the Public Service Commission has no duty to review and decide issues that are inherent in the eminent domain proceeding.

3. Under W.Va.Code, 16-13A-25 (1986), a public service district must first obtain a certificate of public convenience and necessity before it can acquire or construct public service property.

4. Where the Public Service Commission is authorized to issue a certificate of public convenience and necessity, in addition to any specific statutory guidelines, the Commission should consider the general public convenience to be served and the public necessity for it, having in mind the adequacy of any competing similar facilities.

Robert A. Goldberg, Raymond Keener, III, King, Betts & Allen, Charleston, for appellants.

Robert R. Rodecker, McDonald & Rodecker, Charleston, for the appellee Southern Jackson County Public Service Dist.

Drexel M. Vealey, Legal Div., Public Service Comm'n, Charleston, for the appellee Public Service Comm'n.

MILLER, Justice:

James Sexton and Barbara Sexton, husband and wife, appeal a final order of the Public Service Commission of West Virginia (PSC), dated February 14, 1992. In this order, the PSC conditionally approved the application of the Southern Jackson County Public Service District (the District) for a certificate of public convenience and necessity to construct and operate a sewage treatment facility on property currently owned by the Sextons. On appeal, the Sextons assign three errors: (1) the location of the sewage lagoons violates regulations promulgated by the West Virginia Department of Health and Human Services (the Department) and constitutes a nuisance; (2) the PSC erred in finding the project economically feasible; and (3) the District failed to establish that public convenience and necessity exists. We find no error; accordingly, we affirm the final order of the PSC.

I.

Facts

On June 4, 1991, the District submitted an application to the PSC pursuant to W.Va.Code, 24-2-11 (1983), ¹ and W.Va.Code, 16-13A-25 (1986), ² for a certificate of public convenience and necessity to construct and operate a waste water treatment plant and collection system. The proposed waste water treatment facility would consist of two aerated sewage lagoons, a septic reception station, and a disinfection and post-aeration system, and would serve 194 customers in and around Fairplain, Jackson County. The sewage lagoons would be located on approximately six acres of the Sextons' 242-acre farm and would be approximately 430 feet from their home.

On July 8, 1991, having learned of the proposed location of the lagoons, the Sextons

Page 917

[188 W.Va. 308] filed a protest to the District's application and a motion to intervene. The PSC granted the Sextons intervenor status, and on October 10, and 11, 1991, an evidentiary hearing was conducted at which all parties were represented by counsel.

Following the hearing, the administrative law judge (ALJ) issued a decision recommending that the District's application be denied. The ALJ based her recommendations upon the following conclusions:

"1. The Applicant has failed to establish that public convenience and necessity exists with regard to the project as proposed....

"2. The plant site, as proposed, has not received final approval from the appropriate state agencies and, therefore, is not in the public's best interest.

"3. The project is not economically feasible inasmuch as the property needed for the project has not been obtained and the final project costs cannot be determined."

On January 17, 1992, the District filed exceptions to the ALJ's recommendation with the PSC. In an order entered February 14, 1992, the PSC rejected the ALJ's recommendations and approved the District's certificate application, conditioned upon the land acquisition costs coming within the District's estimate. The Sextons appeal.

II.

A.

Buffer-Zone Requirements

The Sextons' primary argument is that the proposed location for the sewage lagoons violates the buffer-zone requirements promulgated by the Department. These provisions establish distances that must be maintained between sewage treatment plants and occupied dwellings. As a guiding principle, the rules mandate that the site should "be as far as practicable from any present built-up[.]" 64 W.Va.C.S.R. § 47-4-1.2. The regulations further provide that "[a]erated lagoons shall be located a minimum of 300 feet from the nearest occupied structure." 64 W.Va.C.S.R. § 47-4-11.4.2. ³ The Sextons concede, as they must, that the proposed lagoons comply with the minimum mandates of 64 W.Va.C.S.R. § 47-4-11.4.2; however, they argue that this regulation merely identifies a starting point for assessing the proper location.

In support of their argument, the Sextons direct our attention to the testimony of Harry Pitts, a professional engineer retained by them. Mr. Pitts testified that the minimum buffer-zone requirement was far from adequate because of the type of system proposed by the District and because of the topography of the surrounding area. Mr. Pitts concluded that "[t]he nature of the collection system ... makes the potential for serious nuisance and hazardous conditions much greater, perhaps a certainty as compared to a more conventional plant receiving and treating fresh sewage."

The District counters by highlighting the numerous weaknesses in Mr. Pitts' testimony. Although Mr. Pitts has an extensive background in sanitary sewer design, he admitted during cross-examination that he was not familiar with the type of system proposed and that the first time he reviewed the plans for the proposed plant was on the day of the hearing. Moreover, Mr. Pitts confessed that he had failed to contact officials at the Page/Kincaid Public Service District in Fayette County where the same treatment design was already in use. Indeed, Mr. Pitts conceded that he had made no effort to determine whether the Page/Kincaid facility experienced odor problems.

Page 918

[188 W.Va. 309] The District offered the expert testimony of Paul Ghosh, the District's design engineer. Mr. Ghosh testified that the collection system proposed was in compliance with all federal and state standards and that the system's design had been modified to avoid the odor concerns about which Mr. Pitts had speculated. Mr. Ghosh concluded that the proposed system and site location were the most cost-effective way to deal with the waste treatment problem in Jackson County.

Fred Hypes, an engineering supervisor with the West Virginia Division of Natural Resources (DNR), also testified on behalf of the District. Mr. Hypes stated that the aerated lagoons being proposed were "a common treatment technology that has been used throughout the State of West Virginia." Mr. Hypes further explained that the design of the proposed facility was identical to the Page/Kincaid Public Service District and he characterized it as "very, very conservative." Finally, Mr. Hypes warned that DNR strongly endorsed the project as proposed and that the failure of the District to secure a certificate of public convenience and necessity would likely cause DNR to revoke grant funds.

In Broadmoor/Timberline Apartments v. Public Service Commission, 180 W.Va. 387, 376 S.E.2d 593 (1988), we reviewed an order of the PSC in a case involving the jurisdiction of the PSC, and, in Syllabus Point 1, we stated our general standard for review:

" ' "[A]n 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. The Public Service Commission, 143 W.Va. 33 [99 S.E.2d 1 (1957) ].' Syllabus Point 5, in part, Boggs v. Public Service Comm'n, 154 W.Va. 146, 174 S.E.2d 331 (1970)."

Applying this standard, we conclude that the PSC did not err in finding that the proposed site satisfied the buffer-zone requirements. All the parties acknowledge that the distance of the proposed lagoons from the Sextons' home is approximately 430 feet, which exceeds the minimum buffer-zone requirement of 300 feet. In deciding whether, in this case, the distance should be greater than the minimum requirement, the PSC relied on ample evidence in the record to support the District's claim that the proposed location is both cost-effective and environmentally sound; thus, we are compelled to defer to the expertise and judgment of the PSC. Accordingly, we find the PSC's ruling that the project complies with the buffer-zone requirement is supported by substantial evidence, and we find no error.

B.

Nuisance

As a corollary, the Sextons vigorously contend that the proposed location of the lagoons...