PSC hands off sewage decision to DEP
The battle between proponents of different designs for a Snowshoe-area sewage system reached a milestone on May 10, when the Public Service Commission (PSC) issued an order in the case.
Snowshoe Mountain, Inc. and five area landowners favor a centralized design proposed by Thrasher Engineering, Inc. The Snowshoe Property Owners Council, Pocahontas County Commission and Public Service District (PSD) favor a decentralized design, proposed by Waste Water Management, Inc. (WWMI) and its president, David Rigby.
The PSC order gives the PSD 45 days to obtain Department of Environmental Protection (DEP) approval to complete the first phase of engineering for a decentralized sewage system. The order dictates that, subject to DEP approval, a decentralized design must be completed within six months and provide the same extent of service as Thrasher's previously-submitted centralized design. The order defers action on pursuing receivership for the project, which the resort and landowners had requested.
The DEP has an active lawsuit against the PSD in Pocahontas County Circuit Court, seeking fines as much as $25,000 per day for wastewater discharge violations.
In the order, commissioners Jon McKinney and Ryan Palmer explained why the DEP must approve the WWMI engineering agreement, which the PSD submitted to the PSC for approval in January:
"Because of the WVDEP position with respect to the District, as things now stand, it would be contradictory and presumptuous for this Commission to conclude that the WWMI Engineering Agreement is in the public interest absent an indication from WVDEP that further study of a decentralized sewage solution is appropriate."
PSD board chairman Tom Shipley, who supports the Rigby design, said he was pleased with the decision.
"I am pleased that the Public Service Commission ruled that it is reasonable for the Pocahontas County PSD to engage Waste Water Management, Inc. and move forward with plans for a decentralized regional project," he wrote in an email. "I have contacted Scott Mandirola, Director of Water and Waste Management. The Pocahontas County PSD looks forward to the opportunity to meet and work with the WVDEP, as partners, as we move forward."
PSD board member Amon Tracey, who supports the Thrasher plan, said he thinks the DEP should disapprove further work with Rigby.
"Rigby is charging an excessive amount of money," he said. "It's coming from those customers on the mountain and I don't believe in it."
While testifying before the PSC in Charleston, Rigby told the commission that he was "strongly committed" to a cost estimate for his decentralized design, which he said would be $10 million cheaper than Thrasher's $25.5 million estimate for a centralized, single plant on Snowshoe Drive.
Tracey said he didn't believe WWMI's system could be built for $10 million less than Thrasher's and provide the same extent of service.
"The Rigby plan - the plan that he claims - did not go north on Route 219," he said. "It stops right there at the intersection of Route 66. He said that would come later. But he said it was $10 million cheaper. But that line going north - I believe that's $1.3 million. So that's $1.3 million off of it and I don't know how he can get any figures - he hasn't even done anything yet. It's like me guessing how much money's in your wallet - it just isn't right."
Fearing Rigby's design would not provide capacity for economic growth, Snowshoe Mountain and the landowners filed a complaint at the PSC, seeking to force construction of the Thrasher plan. The May 10 order directs that a decentralized design must provide the same level of service contemplated in Thrasher's final design:
"Phase I of the WWMI Engineering Agreement can be considered reasonable only if WWMI's work is focused on an alternative project that will serve, at a minimum, all the properties that would have been served by the centralized regional plant at Site 7-12 under the same terms and conditions of receiving service that would have applied if such plant was completed."
Russell Holt, one of the Snowshoe-area landowners who joined Snowshoe Mountain in the complaint against the PSD, said he hopes the PSD obeys the PSC order:
"The Public Service Commission said in 2005 and again in 2008 that the Pocahontas County Public Service District should serve many more of us than it does today," he wrote in an email. "Millions of dollars were provided, including tax dollars, to do that."
"We filed our complaint last summer because the District was failing to provide nondiscriminatory service as a public utility. The District reacted by wasting the last nine months and misappropriating hundreds of thousands of dollars (over the objections of one of its board members, Amon Tracey) trying to have our complaint rejected. But the PSC has now made perfectly clear in its Order (page 25) that any decentralized project alternative proposed by the District must be designed 'to reasonably meet current and future needs of both the mountain and valley communities and to serve the same properties that would have been served by the centralized regional plant on Site 7-12 under the same terms and conditions of receiving service.'
"If the DEP agrees with the PSC to give the District yet another chance to make such a proposal, then we hope that its Board will finally stop bankrupting the District and actually do as it has been ordered - make an honest, apples to apples proposal that must serve both current and future customers."
The PSC will disapprove the PSD's application to hire WWMI if the utility does not provide DEP's written approval within the allotted 45 days.
"It is further ordered that in the event the District does not obtain and file the foregoing written consent of the WVDEP within forty-five days of the date of this Order, then the District petition for Commission consent and approval of an Engineering Agreement is denied," the order states.
Snowshoe Mountain and the other plaintiffs accused the PSD of rigging the statutory engineer selection process so that WWMI would be selected. The commission found there was insufficient evidence to conclude there was any wrongdoing.
"[T]he Commission has received conflicting testimony regarding the selection process and does not find compelling evidence to determine that the WWMI Engineering Agreement should be set aside on that basis," the order reads.
The complainants alleged that PSD board member and property developer David Litsey had a conflict of interests. The commissioners held that the alleged conflict falls under the purview of a different agency:
"Nothing in the West Virginia Code or Commission regulations would disqualify Mr. Litsey from serving as a District board member because of his membership in SPOC," the order reads. "However, the question of whether or not Mr. Litsey has voted on a matter when he has a pecuniary interest in the outcome of that vote could potentially be a problem under West Virginia law. However, that is not for the Commission to determine. Rather, it would be a matter that should be brought to the attention of the Ethics Commission under the West Virginia Ethics Act."
If the PSD receives DEP approval, it will be authorized to proceed with phase one of an engineering agreement with WWMI, which includes a preliminary engineering report and a preliminary design. The PSC order directs that the PSD can pay no more than $110,000 for these services and the work must be completed within six months. The PSC order further directs WWMI to complete a cost analysis:
"[I]n performance of its Phase I engineering services, WWMI will provide the construction cost of a WWMI proposed project as compared to the construction cost of the centralized Site 7-12 plant project as well as the annual operating costs of the WWMI proposal compared to the annual operating costs of the centralized Site 7- 12 plant project," the order states.
The PSD deadline for submitting the DEP written approval to the PSC is June 24, 45 days from the May 10 order.
The PSD order and all testimony and documents submitted in the case are available online at www.psc.state.wv.us. Search case number 11-0028.
The PSD has a regular meeting scheduled for May 31, 7 p.m. at the Durbin Fire Hall.