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PUBLIC SERVICE COMMISSION OF WEST VIRGINIA
CHARLESTONCASE NO. 04-0095-S-CN

CITY OF CHARLES TOWN SEWER DEPARTMENT
Charles Town, West Virginia 25414
Application for a Certificate of Convenience and Necessity to Construct Improvements to its Existing Wastewater Treatment System

REPLY BRIEF OF CITY OF CHARLES TOWN

This Reply Brief of the City of Charles Town ("the "City") responds to the Brief of Intervener Burke. The City notes that the City of Ranson ("Ranson") and the Jefferson County Public Service District ("JCPSD") filed Briefs in support of the City's application for a certificate of convenience and necessity.

Intervener Burke ("Burke") argues that the assumed growth of 225 customers per year is nearly three times the 78 customer per year growth of the past and is unrealistically optimistic. Burke Exhibit 3 disproves Burke's argument. As set forth in Charles Town's Initial Brief the Burke Exhibit 3 indicates that development projects consuming over 3,100 EDUs have received either preliminary or final plat approval. These projects will consume the planned capacity and the remaining capacity of the treatment plant.

Burke argued that any approval of the certificate case should be contingent upon developer guarantees of the full cost of the project and not just $700,000.00. Such a requirement is economically unrealistic. A rate of growth of 225EDUs per year is conservative. The proposed financing arrangements adequately protect the City, Ranson and JCPSD.

Burke argues that approval of the digester should be contingent on between one and two years of absolute compliance by the City of its pollution permits. Although no testimony was offered at the hearing as to how such a construction schedule would impact upon costs, it is certain that such a bifurcated construction schedule would result in a huge increase in costs. Installation of both the blowers and the digester will take place within the confines of an operating treatment plant. Such a construction schedule will result in increased engineering fees for construction monitoring services, increases in mobilization and demobilization charges, increases in costs resulting from inflation, increases in debt issuance costs (two bond issues), and will result in an increase in disruption of the normal activity of the treatment plant. Furthermore, the interest rate on the second bond issue could be higher, resulting in increased debt service costs.

Burke argues that the plant is receiving insufficient monitoring and that the City sewer plant employees do not understand how the plant operates. The testimony of City Manager Jane Arnett contradicts Burke's arguments. She testified about the excursions that have occurred at the plant in the past several years. She testified that she believed those excursions were the result of (I) problems incurred during plant improvements in 2001, including operating software problems as a result of those improvements; (ii) necessity for plant operators to become familiar with operating the plant after the 2001 improvements; (iii) issues regarding the cleaning of the UV system; and (iv) dealing with Nocardia (Transcript Pages 114-118). The City's solution to the norcardia problem is now used as a model for solving similar problems in other treatment plants throughout West Virginia!

Burke points out that a "foreign substance entered the treatment plant on more than one occasion, resulting in killing of bacteria within the plant necessary for treatment of influent. What Burke fails to realize is that the operation of a sewer plant, as with any mechanical device, will ever be perfect. The City can not control improper or illegal dumping of foreign substances into the sewerage collection system.

The City's fitness to operate a sewerage treatment plant should be based upon how it reacts to issues and problems in operating the plant and not the absence of issues or problems. Perfection is not attainable even by the City of Charles Town..

Burke comments on the increasing amount of bacteria released into Evitts Run if flow increases. Even if true there is no evidence that this will result in any harm to the stream, aquatic life or the public. Mr. McCoy testified that the standards established by the West Virginia Division of Environmental Protection are intended to be protective of water contact recreation (Transcript Page 190). This would include swimming in either Evitts Run or the Shenandoah River. There was no allegation made by Burke or any other party that increasing the volume of discharge by 500,000 gpd will violate state standards for fecal chloroform. [sic]

Burke argues that the Public Service Commission is not looking at the overall state cost-benefit ratio which he says is the broadest measure of the general public good. He argues, without any independent evidence, that homes and businesses which will be constructed as a result of the increase in capacity of the plant will cost state taxpayers more money than what the new homes and businesses will pay in taxes. The issues of cost benefit analysis raised by Burke should be properly addressed to the West Virginia Legislature or the Jefferson County Commission. Such issues are clearly not within the jurisdiction of the Public Service Commission.

Lastly, Burke argues that the Commission and the Applicant have not taken into account potential adverse impacts of improper leaking by the collection system serving the Charles Town treatment plant. He argues that the utility needs to be more knowledgeable and thorough in monitoring and managing its sewer system. Burke offered no testimony indicating that the amount of infiltration and inflow into the collection system of the Charles Town treatment plant (including collection systems owned by Ranson and JCPSD) is unreasonably high. Moreover, Burke fails to state the possible negative impact of not expanding the central sewerage system, thus requiring all growth to occur on individual septic systems. Those systems also have the potential for failure. It is this writers opinion that the potential for adverse impacts upon the ground water of Jefferson County are just as great from an improperly maintained and functioning individual septic systems as would occur from an inadequately maintained sewerage collection system.

In conclusion, the City has met the burden of proof and it should be issued a certificate of convenience and necessity, subject to the issuance to the City of the appropriate permits from the West Virginia Division of Environmental Protection and subject to the City providing the Commission with a revised commitment letter to issue a letter of credit in the amount oft $700,000 to secure Huntfield, LC's obligation pursuant to the Debt Service Agreement.

Submitted this 16^th day of September, 2004.

CITY OF CHARLES TOWN, by Counsel

Hoy G. Shingleton, Jr.
WV Bar # 3378
Counsel for The City of Charles Town
115 Aikens Center Suite 24
Martinsburg, WV 25401
304-262-4773