Wetzel County v. Public Service Com'n

• Decision Date: 29 June 2006
• Docket Number: No. 33036.,33036.
• Citation: 633 S.E.2d 286
• Court: West Virginia Supreme Court
• Parties: WETZEL COUNTY SOLID WASTE AUTHORITY, Petitioner v. THE PUBLIC SERVICE COMMISSION OF WEST VIRGINIA AND LACKAWANNA TRANSPORT COMPANY, Respondents.

633 S.E.2d 286

WETZEL COUNTY SOLID WASTE AUTHORITY, Petitioner v. THE PUBLIC SERVICE COMMISSION OF WEST VIRGINIA AND LACKAWANNA TRANSPORT COMPANY, Respondents.

No. 33036.

Supreme Court of Appeals of West Virginia.

Submitted June 7, 2006.

Decided June 29, 2006.

Syllabus by the Court

1. "The Public Service Commission was created by the Legislature for the purpose of exercising regulatory authority over public utilities. Its function is to require such entities to perform in a manner designed to safeguard the interests of the public and the utilities. Its primary purpose is to serve the interests of the public. Boggs v. Public Service Commission, 154 W.Va. 146, 174 S.E.2d 331 (1970)." Syl. Pt. 1, West Virginia-Citizen Action Group v. Public Service Comm'n, 175 W.Va. 39, 330 S.E.2d 849 (1985).

2. "Where the public service commission has, upon proper evidence and after due consideration, made an order prescribing certain rates to be charged for services to be rendered by a public service corporation, it is the official duty of the individual members of such commission to compel obedience to such order, if it be not obeyed, by instituting proper proceedings in court." Syl. Pt. 7, Weil v. Black, 76 W.Va. 685, 86 S.E. 666 (1915).

Darrell V. McGraw, Jr., Attorney General, Silas B. Taylor, Senior Deputy Attorney General, Charleston, for the Petitioner.

Richard E. Hitt, Charleston, for the Respondent, Public Service Commission of West Virginia.

Logan Hassig, Snyder & Hassig, New Martinsville, for the Respondent, Lackawanna Transport Company.

PER CURIAM:

Through this original proceeding, Wetzel County Solid Waste Authority (hereinafter referred to as the "Authority") seeks a writ of mandamus to compel the West Virginia Public Service Commission ("PSC") to enforce its final order denying a certificate of need to Lackawanna Transport Company ("Lackawanna"). Upon our careful review of this matter, we determine that the PSC has failed to take the necessary action to enforce its order of August 19, 2005, which denied Lackawanna's application for a certificate of need to operate a sewage sludge composting facility. Although it has both statutory authority and an obligation to compel obedience to its lawful orders, the record in this case amply demonstrates that the PSC has failed to exercise its enforcement rights with regard to this matter. Accordingly, we grant the requested writ and direct the PSC to issue a cease and desist order with regard to Lackawanna's operation of a sewage sludge composting facility.

I. Factual and Procedural Background

The underlying matter was initiated by Herbert Heiss, a Wetzel County citizen, upon his filing of a complaint with the PSC in September 2001.¹ Mr. Heiss averred that Lackawanna was operating a commercial sewage sludge composting facility without having first obtained the requisite certificate of need as required by law.² The Authority was permitted to intervene in this matter in support of Mr. Heiss' complaint.

In response to the complaint, Lackawanna argued that it was previously granted a certificate of need for a landfill that it operated on the same site as the sewage sludge facility. Contending that a grandfathered certificate of need issued for its landfill operation on February 27, 1992,³ included implied authority to compost sewage sludge, Lackawanna took the position that no hearing was required to resolve this issue. Upon its consideration of whether Lackawanna needed to obtain a separate certificate of need to engage in sewage sludge composting, the administrative law judge ("ALJ") issued a recommended decision in March 2002 finding that the certificate of need issued in 1992 did not authorize sewage sludge composting. The ALJ determined that Lackawanna had to apply for a certificate of need if it wanted to continue to operate a sewage sludge facility.

Challenging the ALJ's adverse recommendation, Lackawanna sought a hearing on certain evidentiary issues. Following a remand for hearing purposes, the ALJ issued a recommended decision on December 16, 2002, under the terms of which Lackawanna was required to obtain a certificate of need and directed to cease and desist sewage sludge composting operations.⁴ On May 9, 2003, the PSC issued a final decision on Mr. Heiss' complaint and concluded that Lackawanna was operating illegally because it was statutorily required to obtain a certificate of need for the sewage sludge processing facility it built sometime after August 3, 2001.⁵ Essentially determining that Lackawanna's arguments regarding the applicability of the grandfathered certificate of need had been mooted by its construction of a new indoor composting facility, the PSC ruled that Lackawanna had to obtain a certificate of need to comply with West Virginia Code § 24-2-1c(a).⁶ The PSC specifically refrained from issuing a cease and desist order as part of its May 2003 ruling, based on its conclusion that: "LTC's [Lackawanna] facility investment, the potential loss of employment and potential harm to LTC's business viewed in conjunction with the progress toward resolution of the CON [certificate of need] case lead the Commission to conclude that a cease and desist order is not warranted pending resolution of the CON proceeding."

Lackawanna appealed the May 9, 2003, decision of the PSC requiring it to obtain a certificate of need. This Court, in deference to the PSC's decision to allow Lackawanna to operate its sewage sludge composting facility while seeking the required certificate of need, deferred ruling on the appeal pending a decision by the PSC on the certificate of need application. By ruling entered on August 19, 2005, the PSC denied the application for a certificate of need.⁷ On November 10, 2005, the PSC refused Lackawanna's request for reconsideration of its ruling. By order entered February 28, 2006, this Court refused to accept the appeal sought by Lackawanna from the PSC's final decision denying it a certificate of need.

The Authority filed a petition with this Court on December 12, 2005, through which it sought a writ of mandamus directing the PSC to issue a cease and desist ruling based on Lackawanna's illegal operation of a composting sewage sludge facility without the requisite certificate of need. This Court, by order entered on March 2, 2006, issued a rule to show cause as to why mandamus should not be imposed against the PSC. During the pendency of this proceeding, the West Virginia Department of Environmental Protection ("DEP") issued an order on May 8, 2006, directing that Lackawanna cease and desist acceptance of sewage sludge for composting within ten days of the issuance of that order.⁸

II. Standard of Review

This Court explained in State ex rel. Public Service Commission v. Gore Water Association, 193 W.Va. 555, 457 S.E.2d 492 (1995), that the PSC is authorized to compel obedience to its lawful orders through mandamus or injunctive relief in the name of the State of West Virginia. Id. at 557, 457 S.E.2d at 494 (citing W.Va.Code § 24-2-2). As we explained in State ex rel. Public Service Commission v. Town of Fayetteville, 212 W.Va. 427, 573 S.E.2d 338 (2002):

This Court will utilize the mechanism of a writ of mandamus as extraordinary relief when a public officer or body has failed in the performance of a mandatory, non-delegable duty. "`Mandamus is a proper remedy to require the performance of a nondiscretionary duty by various governmental agencies or bodies.' Syllabus Point 1, State ex rel. Allstate Insurance Co. v. Union Public Service District, 151 W.Va. 207, 151 S.E.2d 102 (1966)." Syl. Pt. 4, State ex rel. Affiliated Constr. Trades Found. v. Vieweg, 205 W.Va. 687, 520 S.E.2d 854 (1999). "To entitle one to a writ of mandamus, the party seeking the writ must show a clear legal right thereto and a corresponding duty on the respondent to perform the act demanded.' Syl. Pt. 2, State ex rel. Cooke v. Jarrell, 154 W.Va. 542, 177 S.E.2d 214 (1970)." Syl. Pt. 1, Dadisman v. Moore, 181 W.Va. 779, 384 S.E.2d 816 (1988).

212 W.Va. at 431, 573 S.E.2d at 342.

Against these standards, we proceed to consider whether a writ of mandamus should issue to require the PSC to utilize its enforcement powers to compel obedience to its rulings with regard to Lackawanna's illegal operation of a commercial composting facility.⁹

III. Discussion

Only one matter is at issue in this extraordinary proceeding — the PSC's complete lack of enforcement of two related orders that it issued. Through the first order, the PSC determined that Lackawanna was required to obtain a separate certificate of need to operate its sewage sludge composting facility.¹⁰ And through the second order, the PSC denied Lackawanna a certificate of need for this facility after considering the application submitted by Lackawanna.¹¹ Following the PSC's issuance of the final order on August 19, 2005, denying the statutorily required certificate of need, the Authority sought the assistance of this Court based on the fact that the PSC has done nothing to enforce its orders relative to Lackawanna's non-compliant commercial composting operation.

While conceding that it "had a mandatory obligation to deny the CON [certificate of need]" sought by Lackawanna due to non-compliance with the Wetzel County solid waste management siting plan,¹² the PSC takes the position that mandamus is not available under the circumstances of this case. Downplaying its enforcement powers under West Virginia Code § 24-2-2, the PSC postulates that a state court, rather than an administrative agency such as itself, should weigh the equities of the "local economic benefits of the plant versus the perceived local nuisance of the plant"¹³ and be the deciding body to resolve whether the Lackawanna facility can continue to operate. Additionally, the PSC insists that a decision concerning the enforcement of its own orders is discretionary and does not involve a legal duty that is enforceable through mandamus.

In its...