Case NO. 04-1819-S-MA

BRIEF OF INTERVENOR COAKLEY

The City of Charles Town (City) has failed to justify its initial reasoning for the proposed Tuscawilla Hills district (TH) sewer rate increases. The reasons given were increased operation and maintenance (O&M) costs for the TH system.

During the hearing Jane Arnett testified (Transcript (TR.) Page 57-58) in referring to fixed maintenance costs “They probably increased”. She could not say for certain that any of the O&M costs had increased since the City purchased the TH system. The City does not keep separate records for the TH system so how can they know that O&M had increased? If they don’t know this information how could they base rate increases on this supposition? During testimony at the hearing (TR. Pages 30-31) Jane Arnett said the current rates were not sufficient to meet the required debt service coverage since the post construction of the 1998 project. This is also not a justified reason to increase rates for TH customers since the City did not purchase the TH system until May 2002. Ms. Arnett continued by citing a major improvement project at the Charles Town Waste Treatment Plant (CTWT) completed in ’99, 2000 and those rates adopted in ’98 were just not sufficient to produce the required coverage. Again not pertinent to a TH rate increase.

An additional reason for the rate increases was cited by the City in a Press Release issued on November 9, 2004. This Press Release cited increased legal and engineering expenses incurred by the City for a lawsuit against the (CTWT). In this Press Release the City did not assign these additional expenses to a specific rate district. This omission, in affect, assigned these additional expenses to all rate districts.

TH was not a party to the lawsuit and had no connection with the litigation (either directly or indirectly). Jane Arnett testified to this affect (TR. Page 56) Consequently, the increased legal and engineering costs, incurred by this lawsuit, are not assignable to TH customers and, thus, are not a proper basis for a rate increase.

Jane Arnett further testified (TR. Page 31) that the TH system is an aging facility. The infrastructure is greater than 30 years old, very little maintenance had been done on the system.

This would beg the question as to why the City would invest $1.3 million in the purchase of such a system. In actuality, while the initial TH system was built in the mid ‘70s

a large part of the collection system was built within the last 10 to 20 years. This is particularly

true of the Locust Hill portion of the system.

In addition, the previous owner (Tuscawilla Utilities, Inc) made major improvements and upgrades during the mid ‘90s. The attached permit (attachment B) itemizes these upgrades in two (2) Phases. Phase one (1) shown on the permit, was completed and Phase two partially addressed.

In essence these upgrades were designed to increase the capacity of the TH system to accommodate the build outs of both Tuscawilla Hills and Locust Hills. While Phase two (2) was not completed all of the engineering work was finished and the drawings are on file at the PSC.

The major Phase two (2) upgrade that was not completed was the installing of a fourth treatment Lagoon.

Possible future upgrades to TH were brought up in regards to pending Chesapeake Bay requirements (TR pages 62-64).

In the staff report (SR Page 8) the following statement is made: “The Tuscawilla Plant is a lagoon type plant which discharges to a large onsite lake and then flows into Evitts Run upstream of the City Plant”.

This is a serious understatement of the TH flow stream. In actuality, the discharge flows through four (4) lakes and three (3) wetlands before flowing into Evitts Run. The discharge is designed to take 55.3 days to travel through these lakes and wetlands These lakes and wetlands provide much additional tertiary treatment for the discharge. The discharge only flows into Evitts Run in extremely wet periods and during some Winter Months. There is no flow meter at the discharge point into Evitts Run and no testing of any discharges is performed at that point (TR. Page 79) During dry summer months the discharge is used to spray irrigate the adjacent golf course.

Jane Arnett testified (TR. Page 68) she had informal talks with the DEP where they voiced

an opinion that use of the discharge for golf course spray irrigation might need to end. There was no documentation presented to verify this. The reason given was a fear of fecal coliform being deposited during the irrigation process.

The spray irrigation pumps are located at Pond #2. Design flow shows 39.9 days of tertiary treatment before this point. This also means 39.9 days after chorination and dechlorination. Testing the waste stream at Pond #2 (prior to the pumps) would show if fecal coliform actually exists at that point.

While much was made of pending Chesapeake Bay requirements. One of the main web sites for proposed Chesapeake Bay requirements is: www.dnr.state.md.us/bay/tribstrat/exec_summary_5_6_2.pdf . That site provides an executive summary document that gives the proposed discharge limits for Nitrogen and Phosphorous. These limits (by 2010) are: Nitrogen 4 mg/l and Phosphorous 0.3 mg/l.

These limits are for major (>0.5 MGD) waste treatment plants. TH is classified as a Minor waste treatment plant. It is also notable that this document also recommends “spray irrigation’ as one method to use to reach these limits. I have attached Page 1 & 4 of this document as attachment C.

If one checks the EPA site for discharges at the TH plant (NDES permit WV0088013) one will see that TH already meets the Nitrogen requirement unless it is in violation. There are no Phosphorous measurements listed.

Further browsing of the above website and its links shows documents to calculate the costs of upgrades to meet Chesapeake Bay requirements. Other documents show programs already set up by Maryland to identify and provide 50/50 matching funds and/or grants to help offset these costs.

CONCLUSION

The City has not proven increased O & M costs for the TH system. Testimony has shown that TH had no part in the lawsuit brought against the City. The City has not proven their allegations of severe problems at TH. When the City bought the TH system their operators had no experience or training in the operation of an Aerated Lagoon system. Consequently, it is quite possible that any “severe problems” could be attributable to operator error.

Little of the CT debt schedule cited by Staff is attributable to the TH system. Major items on the recommended equipment list by Staff would be used for TH.

The TH system is already capable of meeting the Chesapeake Bay limits on Nitrogen. The TH system has not been tested for Phosphorous levels. Thus it is not yet known if upgrades for meeting Phosphorous limits will be required.

Combining all rate schedules into one (as recommended by Staff) would place an unfair and unjustified burden on TH customers. In short, without further study, and proper documentation, the need for a TH rate increase has not been proven.

Joe D Coakley, Intervenor

PO Box 777

Charles Town, WV 25414

304-728-7383