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Milliron v. The Public Service Commission of West Virginia

Supreme Court of West Virginia

June 9, 2017

Jacquelyn Milliron, Petitioner
v.
The Public Service Commission of West Virginia, and the Jefferson County Public Service District, Respondents

          MEMORANDUM DECISION

         Petitioner Jacquelyn Milliron, appearing pro se, appeals the order of the West Virginia Public Service Commission ("the Commission") that granted the Jefferson County Public Service District's ("the PSD's") application for a certificate of convenience and necessity to upgrade its facilities ("the project"), and approved a post-project rate increase to cover the estimated costs. The PSD appears by counsel Robert R. Rodecker and Laura A. Hoffman. The Public Service Commission of West Virginia ("the Commission"), by counsel Richard E. Hitt and Robert M. Adkins, has filed its requisite Statement of Reasons for the Entry of its Order.[1]

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the order of the Public Service Commission is appropriate under Rule 21 of the Rules of Appellate Procedure.

         On May 12, 2016, the PSD filed an application with the Commission for a certificate of convenience and necessity to complete the project through the upgrade of its wastewater collection and transmission system and the replacement of certain facilities that are approximately thirty years old. The application included a request for approval of a related inter-utility agreement and a request to implement a post-project rate increase. During the Commission's public comment period, more than 35 objections were filed. After receiving evidence, the Commission approved the PSD's application, concluding that the PSD met its burden of proof and demonstrated that the project is needed and the resulting facilities would serve the general public convenience. Ms. Milliron, one of three intervenors before the Commission, appeals the Commission order.[2] Ms. Milliron argues that the Commission's findings of fact were arbitrary and that the PSD project is "not needed at this time."[3]

         We review Ms. Milliron's assignments of error according to the following standard:

"'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 [C]ourt'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.' Syl. pt. 2, Monongahela Power Co. v. Public Service Comm'n, 166 W.Va. 423, 276 S.E.2d 179 (1981)." Syllabus point 1, Berkeley County Public Service Sewer District v. West Virginia Public Service Commission, 204 W.Va. 279, 512 S.E.2d 201 (1998).

Syl. Pt. 1, Jan-Care Ambulance Serv., Inc. v. Pub. Serv. Comm'n of W.Va, 206 W.Va. 183, 185, 522 S.E.2d 912, 914 (1999). To reiterate:

"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." Syllabus point 1, Central West Virginia Refuse, Inc. v. Public Service Commission, 190 W.Va. 416, 438 S.E.2d 596 (1993).

Syl. Pt. 2, Jan-Care Ambulance Serv., Inc.

         Upon consideration of these tenets applied to the facts before us, we find that the Commission acted within its authority and rested its conclusions on adequate evidence, and the substantive result is correct. Though Ms. Milliron supported her position with thoughtful and articulate reasoning, her arguments are not sufficient to overcome the opinions of the various professional engineers and managers whose testimony was received by the Commission. We note that multiple witnesses testified that the PSD's systems are burdened with reliability problems, capacity issues, and aging and failing equipment. Certain pump stations within the PSD's system-those which would be decommissioned under the project-are outmoded and often require the manufacture of parts when repairs are required. Ultimately, the Commission concluded that "the service issues to be corrected by the [p]roject cannot be put off for an extended period of time without bringing into play the real possibility of failures in the [PSD] system." There is no evidence to the contrary in the record before us.

         The Commission adequately addressed each of the issues that Ms. Milliron raises on appeal. For that reason, we hereby adopt and incorporate the Commission's findings of fact and conclusions of law, and direct the Clerk to attach a copy of the Commission order to this memorandum decision.

         For the foregoing reasons, we affirm.

         Affirmed.

          CONCURRED IN BY Chief Justice Allen H. Loughry II Justice Robin Jean Davis Justice Margaret L. Workman Justice Menis ...


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