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PLANNING SCHOOLS ENVIRONMENT EROSION
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BEFORE THE PUBLIC
SERVICE COMMISSION OF WEST VIRGINIA
CHARLESTON
CASE NO,
04-0095-S-CN
CITY OF CHARLES TOWN
SEWER DEPARTMENT
Application for a Certificate
of Convenience and Necessity to Construct Improvements to the Existing
Wastewater Treatment System
BRIEF OF
INTERVENOR, PAUL BURKE
HIGH POTENTIAL
COSTS TO THE PUBLIC
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.
LOW PRIORITY
DIGESTER
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.
INSUFFICIENT
MONITORING AND UNDERSTANDING
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.
BACTERIA WILL BE
EVALUATED ELSEWHERE
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)
OVERALL ISSUES
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
CERTIFICATE OF SERVICE
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
/s/
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)
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