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CASE NO, 04-0095-S-CN




Application for a Certificate of Convenience and Necessity to Construct Improvements to the Existing Wastewater Treatment System






The Charles Town Sewer expansion may increase customers' sewer bills up to 28%,(1) with no assurance of solving the pollution problems. This is in addition to a 26% increase already adopted by the utility and awaiting public comment.


This price increase would be avoided if there are 225 customers added every year,(2) nearly three times the 78 customer per year growth rate in the past.(3) However there is no guarantee of this rate of growth. The lack of local jobs, high gas prices, road bottlenecks, loosening land use controls in Virginia, and changing land use controls in West Virginia make growth at least as uncertain in the future as it has been in the past. There is also no guarantee that DEP will allow higher flows through the plant.


Even if there is fast growth, the rosy financial scenarios assume capacity fees for new customers in Ranson and the Jefferson County PSD which have not been approved. Any PSC approval in this case should be contingent on capacity fees approved in those cases (04-1221-S-MA City of Ranson and 03-1490-PSD-T-PC Jefferson County Public Service District).


The staff report largely justifies the project based on pollution abatement, rather than uncertain projections of growth. Yet the staff does not directly consider whether customers can or should handle up to a 28% cost increase.


The risks of slow growth could be reduced or removed if developers were required to guarantee the full $4,051,365 principal and interest cost(4), instead of just the first $700,000. In July Huntfield was willing to guarantee $1,700,000.(5) The value of the project to them has not decreased, so it is not clear why they should reduce their commitment. Any PSC approval should be contingent on developer guarantees of the full cost.




Spending money on the digester in particular is premature until the utility knows the causes of its pollution problems and knows that these are the appropriate fixes. The digester takes about three quarters(6) of the total cost. If it were omitted presumably the worst case cost increase would be only 7%. Alternatively the needed full guarantee from developers would be $1,000,000. Staff say the digester is "not justified on a cost savings basis."(7) It lets operators pump sludge more easily from the bottom of the SBR basins ("sludge level control"(8)) so they have more space in the SBR basins during storms, However sludge can be and is also pumped into the existing sludge basins.


The utility's engineer testified that he knows of no other municipal sewage plant with such high inflows(9) of BOD,(10) and therefore has no actual experience that the blowers will fix the problems. Identifying and fixing those high inflows needs a higher priority, and may require other spending. The digester uses up money which will be needed for other fixes if permit violations continue. The plant went through an upgrade in 2000-2001 which was similarly designed, by the same engineering firm, to bring the plant into compliance and did not completely do so. PSC approval of the digester should be contingent on a year or two of compliance with the pollution permit.




As the Lengyel/Weimer Final Memorandum says on p. 4,


"The plant operators are unsure of the cause of most excursions [pollution] but acknowledge that cold weather filamentous bacteria outbreaks in the SBR basins contributed to several of the plant violations of the discharge permit. In addition, a foreign substance has entered the basins on several occasions which killed a majority of the bacteria necessary for treatment of the influent BOD materials."


Responsible people at the utility are not watching and solving the problems in a thorough way. Since this utility has higher BOD inflows than any other plant the engineer has seen, as noted above, it needs a major effort to know why. People are much the same everywhere. This area has a tourist economy, but so do many other places.


The utility refers to an old search in the 1990s which did not find the sources of high BOD.(11) Furthermore the city claimed to be doing a new search for high BOD sources in 2/04.(12) This new search is certainly praiseworthy and crucially needed to identify and solve current problems. However the witnesses presented by the utility, the city manager and engineer, had no knowledge(13) of results from this new 2/04 study. They will not be able to design and manage their system effectively until they analyze that study and know why the utility has this key difference from every other utility. Constant upgrades without understanding the root cause, are a poor use of money.


The utility's witnesses also had no knowledge(14) of the current monitoring of inflows, promised by their attorney as recently as June.(15)They had no knowledge(16) about how frequently collection pipes and grease traps are inspected. These inspections are basic methods to reduce incoming loads. The current proposal still has no maintenance description as required in PSC checklist item 150 CSR 1-26.1.14.g. Certainly some things need different maintenance when a single deep digester replaces four shallow ones, and the belt press starts dealing with a very different kind of sludge. PSC approval of any spending should be contingent on a search for BOD sources satisfactory to PSC staff, followed by consistent work to reduce excessive sources, and submission of the required maintenance description.




The DEP review will need to look at increasing bacteria released in Evitts Run if flows increase. The Lengyel/Weimer Final Memorandum gives an unsupported figure of 18 months with only one bacteria excursion.(17) The reality is worse, as demonstrated by Burke exhibit 1, which shows six bacteria readings above the permit limits in the last 18 months. The utility provided testimony by Mr. McCoy that there is currently no information on bacteria pollution on most days.(18)




Many citizens, including myself, are enormously relieved that this system will not discharge its pollution directly into the swimming areas of the Shenandoah River. There is also great relief that no construction of an effluent line will be snarling traffic along Route 9.


It is a serious concern that the state PSC is not looking at the overall state cost-benefit ratio, which is the broadest measure of the general public good. Ratepayers, and even users of Evitts Run, are only "a number of individuals or a community," whereas the Supreme Court has called on the PSC to consider "general public convenience."(19) The PSC is the only agency in a position to judge the public good in this broadest sense. New homes cost state taxpayers thousands of dollars per home in road and school costs, beyond what the new homes will pay in taxes.(20) The difference between what homes pay and their public cost is collected from business taxes throughout the state.


Mr. Robertson said, "the Commission has no jurisdiction under the regulation of highway construction."(21) The Commission has equally little jurisdiction on trout or larvae in Evitts Run. However the Commission has jurisdiction over sewer plant expansion, and needs to minimize harm to West Virginia taxpayers, as well as to trout and larvae.


It is also a serious concern that this case is about a sewer plant, to serve new homes, and yet it declines to look at the pipes connecting those homes to the plant. The pipes, and thus the project being reviewed, have grave potential to harm the public good by releasing raw sewage into groundwater when these pipes break in the shifting limestone.(22)


Finally the project is risking a lot of rate payers' money, and pollution is likely to continue going into Evitts Run and groundwater. If one does not manage and maintain a system right, even the most complex system acts like a straight pipe pumping pollution into our water. The utility needs to be more knowledgeable and thorough in monitoring and managing its system.


Respectfully submitted,

/s/ 9/10/04


Paul Burke, Intervenor Date




I, Paul Burke, Intervenor, hereby certify that I have served a copy of the foregoing Brief upon all parties of record by email and First Class US Mail, postage prepaid this day, September 11, 2004.


 Sandra Squire, Executive Secretary


Public Service Commission


PO Box 812


Charleston, West Virginia 25323


Original+12 copies fax 304-340-0325


Hoy G. Shingleton, Jr., Esq., Counsel


City of Charles Town Sewer Department


115 Aikens Center, Suite 24


Martinsburg, WV 25401


James V. Kelsh, Esq.


Counsel for Jefferson County PSD


PO Box 3713


Charleston, WV 25337-3713


David C. Glover, Esq.


Counsel for City of Ranson


Waters, Warner & Harris, PLLC


PO Box 1716


Clarksburg, WV 26302-1716


Georgiana M. Pardo, Esq.


Counsel for Huntfield, L.C.


44084 Riverside Parkway, Suite 300


Leesburg, VA 21076-5102




Paul Burke, Intervenor


PO Box 1320


Shepherdstown, WV 25443


 1. Based on the staff calculation of $5.62 additional cost per customer per month (p.12 of Lengyel/Weimer Final Memorandum) divided by $19.93 rate for typical 4,500 gallons/month (exhibit 2 of Lengyel/Weimer Final Memorandum)


2. Charles Town exhibit 12


3. Facility Plan Addendum submitted 5/04, p. 14 shows 1.67% as the "historic County growth rate." This is 78 customers per year, based on the 4,423 customers listed on pp. 11-12 of Lengyel/Weimer Final Memorandum. Another way to calculate is 1.67% of 1,050,000 gallons per day now, or 17,535 gallons, which is 97 EDUs at the utility's estimate of 180 gallons/EDU. This year had a spurt, to avoid impact fees, to capture remaining capacity, and because of temporary growth controls in Virginia, but the trend has been 1.67%.


4. Attachment to Crews & Associates letter, 8/25/04, labeled "page 4"


5. 7/12/04 letter of commitment from M&T Mortgage Corporation


6. p. 3 of Lengyel/Weimer Final Memorandum shows $1,500,000 for digester and $500,000 for blowers. The rest of the costs are contingency and financing costs that can be allocated proportionately to the two projects.


7. p. 3 of Lengyel/Weimer Final Memorandum


8. p. 3 of Lengyel/Weimer Final Memorandum


9. 8/24/04 hearing transcript p. 161, lines 4-7


10. Bio-chemical oxygen demand, i.e. biodegradable materials


11. 8/24/04 hearing transcript p. 161, lines 4-14


12. 3rd sentence on last page of Burke exhibit 1 (Design Manual Update 2/13/04)


13. 8/24/04 hearing transcript: manager p. 92, line 22 to p. 93, line 13; engineer p. 161 lines 18-23


14. 8/24/04 hearing transcript; manager p. 91, line 16 to p. 92, line 2; engineer p. 153 lines 19-24


15. 3rd to last sentence of Lewis letter 6/10/04 in Burke exhibit 1


16. 8/24/04 hearing transcript: manager p. 93, line 14 to p. 94, line 12; engineer p. 161 line 24 to p. 162 line 1 and p. 164 lines 8-11


17. p. 7 of Lengyel/Weimer Final Memorandum


18. 8/24/04 hearing transcript p. 189 lines 5-12; p. 191 lines 15-17


19. Sexton v. PSC & Southern Jackson County PSD 188 W.Va. 305, 423 S.E.2nd 914 (1992) "general public convenience to be served" "as distinguished from that of a number of individuals or a community"


20. 8/24/04 hearing transcript: Haney pp. 34-37; Burke pp. 280-282, 294-295


21. 8/24/04 hearing transcript p. 293 lines 15-17


22. p. 7 of Lengyel/Weimer Final Memorandum; 8/24/04 hearing transcript: Cummins pp. 24-26 and the pictures he submitted; Baty pp. 49-52 and the map and documents he submitted