PUBLIC SERVICE COMMISSION OF WEST VIRGINIA

CHARLESTON

Entered: September 1 . 1992

CASE NO. 92-0116-W-C

RURAL ELKINS COMMUNITY ASSOCIATION, Route 2 , Box 550-1, Elkins, Randolph County,

Complainant,

V.

CITY OF ELKINS, a municipal corporation.

RECOMMENDED DECISION

On February 4, 1992, Rural Elkins Community tion), Route 2, Box 550-1, Elkins, Randolph County,

Association (Associa- filed a duly verified

formal complaint against the City of Elkins (City), a municipal corpora- tion.

By Order entered on February 4 , 1992, the City of Elkins was required to satisfy the complaint or submit a written response within ten (10) days after receiving a copy of the complaint and a copy of the Commission's Order by Certified Mail.

On February 16, 1992, the City of Elkins filed a late response to the formal complaint.

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On February 27, 1992, the Commission referred the matter to the Division of Administrative Law Judges (ALJ) for processing, and mandated that an ALJ Decision be rendered on or before September 1, 1992.

As set forth in the complaint, the Rural Elkins Community Association maintains that the City of Elkins has provided water service to the individual property owners and businesses which receive water service through the Crystal Springs' waterlines. The customers in question are individually billed by the City of Elkins for water service they receive according to the City of Elkins' existing tariff charges, and the custom- ers are assessed individual tap fees by the City of Elkins. However, the City of Elkins contends that the Crystal Springs' water lines were con- structed and are owned by the Rural Elkins Community Association, and the City of Elkins refuses to assume any responsibility to maintain the water lines in the Crystal Springs area. The City contends that it did not

P U B L I C SERVICE COMMISSION

install the lines in question, and it has had no control over the manner 3r method of installation or the type of materials installed. Therefore, the City contends that the lines in question are not up to the City's specifications and standards, and it refuses to accept any responsibility to operate and maintain the lines.

By order entered on March 17, 1992, a procedural schedule was estab- lished which scheduled the matter for hearing to be conducted on Wednes- lay, May 13, 1992, in the Council Chambers, City Building, 401 Davis \venue, Elkins, West Virginia, beginning at 11:OO a.m.

The hearing commenced as scheduled. Dorwin Wolfe, Esquire, appeared 3n behalf of the City of Elkins. Joe Watkins, Esquire, appeared on behalf Df Commission Staff. A number of members of the Rural Elkins Community \ssociation were present at the scheduled hearing. They represented that the Rural Elkins Community Association was not constituted as a legal zorporation. Instead, the members who appeared at the hearing represented that the Rural Elkins Community Association was a loosely formed associa- tion more in the guise of a partnership or unincorporated association. Based upon those representations, the individuals would have the ability to appear and represent their own interests before the Commission, without zounsel. Three members of the Association were designated as the primary spokespersons for the Association members. Those individuals were Mr. West Pizzoferrato, Owen Fansler and Roseann Marshall.

The Complainants presented testimony of the following six witnesses:

Orest Pizzoferrato, Member of the Rural Elkins Community Asso- ciation and a member of the Board of Directors for the Associa- tion;

Roseann Marshall, Secretary of the Rural Elkins Community Association, whose family owns developed property in the Crystal Springs area;

Owen Fansler, Member of the Rural Elkins Community Association and current Board Member of the Association;

Paul McQuain, a resident of the City of Elkins who owns property in the Crystal Springs area;

William Painter, a resident of the Crystal Springs area and a Member of the Association; and

Rhetha Weiss, a resident of the Crystal Springs area and a Member of the Association.

The City of Elkins presented the testimony of the following witnesses:

Mr. Thomas Waller, a former Member of the Rural Elkins Community Association who was involved in the construction and development of that system; and,

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Rick Smith, Assistant Supervisor for the City of Elkins' water distribution system.

Commission Staff presented the testimony of Charles Windham, Utility Engineer.

The Administrative Law Judge required the parties to file financial data illustrating the difference in revenues if the Crystal Springs customers were collectively billed at a bulk water rate instead of being individually billed as individual retail customers of the City. That analysis was filed by Commission Staff on May 27, 1992, and is hereby received into evidence as ALJ Request Exhibit No. 1.

At the conclusion of the hearing, a briefing schedule was established which provided f o r the filing of initial briefs on or before June 17, 1992, and the filing of reply briefs on or before July 1, 1992. Commis- sion Staff timely filed initial and reply briefs in this case. The City of Elkins also filed initial and reply briefs in this case, but each brief was received one day after the established deadline. The Rural Elkins Community Association, through Roseann Marshall, Secretary for the Asso- ciation, filed a written statement of position on June 26, 1992.

The ALJ finds it reasonable and appropriate to fully consider all of the initial and reply statements of positions and briefs, as if they were timely filed.

I I EVIDENCE

The essential facts in this case are not in substantial dispute. Sometime in 1936, a group of residents in the area of Crystal Springs approached the City of Elkins for water service. The City of Elkins 'refused to construct a main extension at the City's expense to serve the ,residents of Crystal Springs, but it agreed to provide water service to 'the Crystal Springs residents if they constructed the line at their own jexpense. (Defendant's Exhibit No. 1; Tr., pp. 10-13, 87-90).

The Crystal Springs residents proceeded to form the Rural Elkins Community Association to construct the line extension and secure water service from the City of Elkins. Each Association member paid an initial membership fee of $90 to the Association. The funds collected from these membership fees were used to fund the initial line construction. (Tr., pp. 13, 97-98).

The Rural Elkins Community Association constructed a 6,200 foot main extension to serve the Crystal Springs area in 1939. The City of Elkins did not sell water to the Rural Elkins Community Association as a master metered bulk water user. Instead, the City of Elkins billed each indi- vidual customer on the Crystal Springs system as the City's own customer. Once the Crystal Springs line was constructed, the City of Elkins placed a water meter at each residence, and billed each Crystal Springs resident a monthly water bill according to the City of Elkins' established tariff. Each Crystal Springs resident was required to pay a tap fee to the City of

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Elkins to obtain water service and was required to pay monthly water rates which were the same rates the City of Elkins charged to its other retail water customers. The City of Elkins also performed routine repair and maintenance on the Crystal Springs water main, but it assessed the Rural Elkins Community Association an additional charge for performing such services, based upon the material and labor involved. (Tr., pp. 29-30, 36, 42-45, 70-71, 73, 114-115).

The Association is a loosely formed entity. No member who appeared at the hearing had a copy of the Association's bylaws or any other docu- ment which would formally set forth the Association's makeup, structure and powers. The Association does not render any bills to the customers who are connected to the Crystal Springs main extension, and it has no source of operating revenues outside of its collected membership fees, other than donations. (Tr., pp. 29-32, 38-41, 77-78, 83-86).

On or about 1958, the Crystal Springs main extension needed to be relocated due to highway construction. At that time, the Association passed a resolution which required all members to contribute $300 apiece toward the cost of the main relocation and upgrade. Since that time, the Rural Elkins Community Association has passed no additional resolutions or assessments to meet the cost of operating and maintaining the line. (Tr., pp. 13, 29-32, 93-96).

As new residential customers connect to the extended main in the Crystal Springs area, they are currently required to pay a $358 membership fee to the Rural Elkins Community Association, and a $250 tap fee to the City of Elkins. Thereafter, the City sends the customer a monthly bill based upon the individual customer's meter reading and the City's pre- vailing tariff rates. (Tr., pp. 14-15, 34-36, 44-45, 67-69, 76-79, 82-83, 99-103, 116-117).

No party was able to tender a written document which clearly embodied the agreement and understanding between the City of Elkins and the Rural Elkins Community Association. The City of Elkins presented a copy of the minutes of a May 20, 1937 City Council meeting which stated as follows:

J. W. Bischof f and other residents of Crystal Springs Section appeared and asked that Council sponsor water line extension to that community, assuring Council that all expenses would be taken care of by his group of property owners, and all materials would be on-ground before the work was started. That they would save the City harmless. On motion of Mr. Earle, seconded by Mr. Wilverding, the Mayor was empowered and instructed to sign and submit this project with the distinct understanding that expenses would be paid by Crystal Springs residents.

(Defendant's Exhibit 1, Tr., pp. 91-92

On its face, the language found in the City's May 20, 1937 minutes could be reasonably interpreted in a number of ways. The language could be reasonably interpreted to mean that the line extension was to be constructed as an extension of the City of Elkins' water system, at the expense of the Crystal Springs residents seeking service. That

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interpretation would have the line constructed by the residents, with the City's knowledge and permission, and subsequently turned over to the City of Elkins to be owned and operated like any other part of the City of Elkins' system. Another interpretation, advanced by the City, is that the Crystal Springs residents had not only agreed to construct the line at their own expense, they also agreed to pay all future expenses of operat- ing and maintaining the line after construction was completed.

While the City's interpretation of the parties' stated intent in the City Council minutes appears to be strained, it does, in fact, represent how the extended water mains in the Crystal Springs area have been main- tained since 1939, when the lines were constructed. The Crystal Springs residents, even though they were individually billed for water service as customers of the City of Elkins, paid additional assessments to the Rural Elkins Community Association to relocate the main line in 1958, and the Association has paid the City to repair and maintain the extension as if it were a contractor for the Association. (Tr., pp. 13, 29-32, 36, 42-45, 70-71, 73, 91-92, 114-115).

As of this date, the City of Elkins serves approximately 175 resi- dential and commercial customers through the water main extension con- structed by the Rural Elkins Community Association. Some of the commer- cial customers served through that line are located in areas which have been annexed into the City limits. (Tr., pp. 24-28; ALJ Post-Hearing Request Exhibit No. 1).

The City's previous role in overseeing, inspecting and approving the Crystal Springs' water line extension is not clear in the record. The construction occurred long ago, and individual recollections appeared to be hazy and contradictory. Mr. Waller testified that, to the best of his knowledge, the original water line was installed by Roush Equipment and its installation was not supervised by the City of Elkins. (Tr., pp. 93-94). Mr. Pizzoferrato testified that a private contractor installed the main 6-inch Transite line in the late 1950s, and he was not certain whether or not the City was involved in approving or inspecting those lines. (Tr., p. 38). Ms. Marshall, who would have been a teenager at the time, recalled that Mr. Jones, an employee of the Elkins Water Department, was a hired assistant to the Association during project construction. However, she was not certain of Mr. Jones' capacity with the City when the main was initially laid. Also, a professional engineer was retained to oversee the project construction. (Tr., pp. 58-62, 64-66).

The City of Elkins serves a number of areas which are outside the City limits of Elkins. Customers in the Highland Park, Harpertown and Cravensdale areas are directly served as customers of Elkins, and the City performs all necessary repair and maintenance on the main lines in those areas as a direct obligation of the City, with no additional direct or indirect charges to the customers. (Tr., pp. 73-76, 139-141). The City of Elkins also provides wholesale water service to the Midland Public Service District and the Laurel Mountain Water Association. While the City of Elkins does not maintain the mains, facilities and appurtenances of these wholesale customers, the wholesale customers are only charged a single bill according to each system's collective water usage on a master reader, at a lower bulk water rate per thousand gallons than the City's

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OF :mN GlNlA

retail service rate. The City's current metered retail service rate is $1.42 per 1,000 gallons for the first 750,000 gallons of water used per quarter, while the City's current bulk water rate charged to other water utilities is $1.09 per thousand gallons. (Tr., pp. 110-112, 118-122, 131).

The Rural Elkins Community Association residents believe that, since they are paying the City of Elkins' full service rate, they should receive the full service benefits enjoyed by other retail customers of the City of Elkins. The City of Elkins' reasonable cost of maintaining main lines and facilities are presumably embedded in the City of Elkins' retail water rates. Therefore, the Crystal Springs residents believe that the City of Elkins should be required to assume the full responsibility of upgrading and maintaining the Crystal Springs main line extension. The residents also observed that the Rural Elkins Community Association did not have the available funds to operate and maintain the lines and facilities in question. (Tr., pp. 47, 54-55, 60-62).

Further, in the event that the City of Elkins is not required to take over the operation and maintenance of the main lines serving Crystal Springs, the residents believe they are entitled to a refund. Since the City of Elkins was not previously bearing the expense of maintaining the water mains serving Crystal Springs, the residents maintain that the City should be required to refund the difference between the bills it rendered to the Crystal Springs residents and the City's bulk water rate, since the customers were being effectively charged for maintenance and operation services which the City was not providing. (Tr., pp. 54-55, 60-62).

As shown in ALJ Request Exhibit No. 1, Commission Staff calculated the actual billed revenues derived from the Crystal Springs customers for the fiscal year from July, 1990 through June, 1991, and compared that to the revenues which would be derived from those customers under a bulk water rate. For that period, Staff calculated that the Crystal Springs residents were billed $6,193.46 more than they would have been billed under the City's bulk water rate. (ALJ Request Exhibit No. 1).

The City of Elkins does not want to assume the responsibility for the operation and maintenance of the Crystal Springs mains and appurtenances. The City maintains that it had not overseen the pipeline's installation, and it had no reasonable assurance that the facilities were in compliance with the City's standards or the Commission's standards. There are no maps or as-built plans for the water lines serving Crystal Springs, there are no right-of-ways on file for those facilities, and the constructed lines cross private property in certain areas. (Tr., pp. 22, 48-49, 122-124).

Further, based upon its experience in repairing certain sections of the line, the City noted that two of the main lines constructed by the Rural Elkins Community Association (the six-inch main line and a 3-inch pipe across Route 3 3 ) were comprised of Transite (asbestos-concrete) pipe. Environmental Protection Agency standards mandate that all underground Transite pipe be replaced by pipe of an acceptable material if breaks occur in the Transite pipe. Therefore, the City believes that its as- sumption of the maintenance responsibility for these lines would impose a

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high potential liability upon the City's water system. (Tr., pp. 17-18, 122-124, 129-132).

The City had its engineer prepare an estimate of the potential cost of taking over the system. The City's engineer had estimated that it would potentially cost the City $500,000 to assume the maintenance of the system. The engineer was not at the hearing to sponsor his estimate and describe how he made his calculation. However, it was apparent that the City's engineer assumed that the entire water system in the Crystal !/I Springs' area would need to be replaced. (Tr., pp. 123-125; Defendant's j~ Exhibit No. 2). I /

Mr. Rick Smith, Assistant Supervisor for the City's water system, acknowledged that a significant portion of the Transite pipe in the 1 1 Crystal Springs area had been previously replaced when the City had repaired line breaks at the Association's request. Although the exact 1 footage of line replaced was not available, it is clear that all of the j system would not need to be replaced, and the associated financial burden 1 of replacing the remaining Transite pipe as it broke or required repair has not been quantified. However, it is clear that the financial obliga- // tion of replacing Transite pipe with other acceptable pipeline materials 1

during the ordinary course of repair and maintenance is not nearly as dramatic as related by the City. (Tr., pp. 133-137).

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II

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The City proposed to master meter the Crystal Springs system and ' 1 serve the Association as a single customer, as an alternative to taking over the main lines in that area. (Tr., p. 122). Staff Engineer Charles , i Windham observed that there were multiple interconnections and cross i i connections between the Crystal Springs line and the remainder of the City ' 1 of Elkins' system. Therefore, multiple master meters would be required to / I accurately register the amount of water introduced into the Crystal j j Springs lines. In one area, the lines were looped, and water could flow in both directions where the Crystal Springs line connected into the City 1 ) of Elkins ' system. Therefore, Mr. Windham concluded that master metering I ! the Crystal Springs system was not a viable alternative. (Tr., pp. 1 1

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DISCUSSION i i

Commission Staff has recommended that the City of Elkins be required to acquire and maintain the main lines and appurtenances in the Crystal

served the Crystal Springs residents as the City's own customers, through main lines that are owned by a third party (the Association). Staff maintained that the described arrangement violated longstanding Commission policy, was contrary to applicable Commission rules, and was inherently unfair to the Crystal Springs customers, who were required to pay f u l l tariff rates without receiving the f u l l benefits of the City's services. (Staff Initial Brief). 1

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Springs area. By its actions, Staff maintains that the City of Elkins has

The City of Elkins maintained that it would be unfair to require it to take over the maintenance of the lines in question, which were pur- i l portedly constructed without the City's oversight and input. The City

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maintained that the Crystal Springs system represented a large potential liability to the City, and other more palatable alternatives, such as master metering the Crystal Springs system, were available to correct the inequities. (City of Elkins' Initial Brief).

In response to Staff's recommendation, the City of Elkins maintained that the circumstance at hand could be distinguished from the precedents cited by Commission Staff. In other circumstances where the Commission had required a utility to assume ownership of utility mains which were constructed and operated by other entities, the City maintained that customers had been refused access to the utility's service or the mains were owned by a third party which interposed itself between the utility and its customers. The City of Elkins asserted that the overall public policy would not support forcing the City of Elkins to assume control of a water system which had been established by an independent association which solely determined the methods and means of the water system's installation and maintenance. (City of Elkins' Reply Brief).

After reviewing the facts in this case, it is clear that the City of Elkins has been rendering water service to approximately 175 customers in the Crystal Springs area. Even though the main lines in the area were originally constructed by the Rural Elkins Community Association, the City of Elkins has charged each customer a tap fee and billed each individual customer according to the City's established tariff rate. The City reads the individual water meters and maintains exclusive control over the individual customer connections. All bills are directly paid to the City of Elkins, and there is nothing on the bills to indicate that the indi- vidual customers are anything but direct customers of the City of Elkins.

The water mains were constructed by the Association and connected to the City's water system with the City of Elkins' full consent and approv- al. The City of Elkins has been maintaining the lines, for an additional charge to the Association, since their construction. Since the City individually meters all customers tied into the line, it has essentially absorbed all line losses on the mains, even though it had not perfected any ownership in the lines.

In contrast, the Rural Elkins Community Association renders no bills to its members, and it has no clear means of deriving revenues from the I !

) I individual water users. It has never filed an application for a certifi- cate of public convenience and necessity to provide a public utility I / service, and the only facilities it arguably owns are the mains it con- ' structed and upgraded with membership fees. :I

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Pursuant to West Virqinia Code S24-1-2 a "public utility" is defined to "mean and include any person or persons, however associated, whether incorporated or not, including municipalities, engaged in any business, whether herein enumerated or not, which is, or shall hereafter be held to be, a public service". A "customer" is defined to "mean and include any person, firm, corporation, public service district or any other entity who purchases such services or product for resale."

After reviewing the described transactions, it is clear that the individual water users in the Crystal Springs area are purchasing water

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service from the City of Elkins. The City of Elkins does not bill the Association for water service, and the Association does not resell any water service to the Crystal Springs residents. The direct utili- ty/customer relationship is therefore established between the City of Elkins and each individual Crystal Springs resident.

The City of Elkins refuses to allow any customers to tie into the Crystal Springs lines until they pay a "membership fee" of $358 to the Association, in addition to the City's normal tap fee. By this action, the City is effectively interposing the Association between the individual customer, the Crystal Springs resident, and the utility, the City of Elkins.

The Commission's rules and established policy are clear and unambig- uous. A public utility is to own and operate each utility main upon which it relies- to render service to its individual customers. See Hurst v. West Virginia Water Company, Case No. 8850, 66 ARPSCWV 248 (1978), recon- sideration, 66 ARPSCWV 256 (1979), aff'd sub nom., West Auqusta Develop- ment Corporation v. Public Service Commission, Slip Opinion No. 14585, 67 ARPSCWV 163 (1980); Burns v. The Sanitary Board of the City of Huntington, Case No. 82-259-S-C, 70 ARPSCWV 1571 (1982); Grayley v. Lincoln Public Service District, Case No. 87-082-W-C and Liebert v. Lincoln Public Service District, Case No. 87-087-W-C (August 20, 1987 Final Order and October 13, 1987 Commission Order); Mountaineer Heights Homeowners Asso- ciation v. Pinch Public Service District, Case No. 87-269-W-C (July 8, 1988 Recommended Decision, which became a final order of the Commission on July 8, 1988); and Volk v. Broadmoor/Timberline Apartments, Case No. 87-342-S-C (December 13, 1987 Recommended Decision, April 15, 1988 Com- missi sion, 91-72

on Order) ; W.Va.

7-W-P (Apr

Broadmoor/Timberline Apartments v. Public Service Commis- 376 S.E.2d 593 (1988); and Town of Athens, Case No.

,il 10, 1992 Recommended Decision, which became a final order of the Commission on April 30, 1992).

As described in the cases cited above, the underlying policy is that a public utility is to maintain control over the mains, appurtenances and facilities upon which it relies to render public utility service to its customers. In this case, as in Mountaineer Heiqhts Homeowners Association v. Pinch Public Service District, Case No. 87-269-W-C, once a public utility establishes individual meters to the individual residences within an association's territory and begins billing each customer the utility's full metered rates for service, the utility is expected to obtain the appropriate dominion and control over the main lines to ensure that the utility renders safe and adequate service to its customers.

The ALJ does not find any sufficient reason in this case to ignore or bypass the established Commission policy. The City of Elkins has been billing the customers on this line according to its full tariff rates for over forty years, without paying for any routine maintenance or repair of the lines. Therefore, the City has been enriched by charging its full retail rate to these customers without providing the full benefits of utility service to them. Although the City maintains that a large portion of the mains will need to be eventually replaced, these replacements are only required to be conducted in the normal course of routine repair and maintenance services, as the old Transite pipe breaks or leaks.

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Therefore, the ALJ is of the opinion that, in consideration of established Commission policy, the City of Elkins should be required to obtain clear title and ownership over the mains and appurtenances, previ- ously constructed by the Rural Elkins Community Association, which are relied upon to render utility service to the residents and businesses in the Crystal Springs area. To perfect clear title in the necessary facil- ities and rights-of-way, and to promote the effective and efficient operation of the water distribution system, the ALJ finds it reasonable to require the Rural Elkins Community Association to deliver clear title in the transferred facilities and rights-of-way as a condition of the trans- fer, and provide reliable as-built maps and drawings of its constructed lines and facilities. Until such transfer is completed, the ALJ finds it appropriate to require the City of Elkins to perform requested maintenance and repair on the lines and appurtenances at no additional charge to the Association.

FINDINGS OF FACT

1. After reviewing the facts in this case, it is clear that the City of Elkins has been rendering water service to approximately 175 customers in the Crystal Springs area. Even though the main lines in the area were originally constructed by the Rural Elkins Community Associa- tion, the City of Elkins has charged each customer a tap fee and billed each individual customer according to the City's established tariff rate. The City reads the individual water meters and maintains exclusive control over the individual customer connections. All bills are directly paid to the City of Elkins, and there is nothing on the bills to indicate that the individual customers are anything but direct customers of the City of Elkins. (Tr., pp. 29-30, 36, 42-45, 70-71, 73, 114-115; ALJ Request Exhibit No. 1).

2. As new residential customers connect to the extended main in the Crystal Springs area, they are currently required to pay a $358 membership fee to the Rural Elkins Community Association, and a $250 tap fee to the City of Elkins. Thereafter, the City sends the customer a monthly bill based upon the individual customer's meter reading and the City's pre- vailing tariff rates. (Tr., pp. 14-15, 34-36, 44-45, 67-69, 76-79, 82-83, 99-103, 116-117).

3. The water mains were constructed by the Association and con- nected to the City's water system with the City of Elkins' full consent and approval. The City of Elkins has been maintaining the lines, for an additional charge to the Association, since their construction. Since the City individually meters all customers tied into the line, it has essen- tially absorbed all line losses on the mains, even though it had not perfected any ownership in the lines. (Defendant's Exhibit No. 1; Tr., pp. 10-13, 29-30, 36, 42-45, 70-71, 73, 87-90, 114-115).

4. In contrast, the Rural Elkins Community Association renders no bills to its members, and it has no clear means of deriving revenues from the individual water users. It has never filed an application for a certificate of public convenience and necessity to provide a public utility service, and the only facilities it arguably owns are the mains it

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constructed and upgraded with membership fees. (Tr., pp. 29-32, 38-41, !I 77-78, 83-86).

5 . Pursuant to West Virginia Code (524-1-2 a "public utility" is defined to "mean and include any person or persons, however associated, whether incorporated or not, including municipalities, engaged in any business, whether herein enumerated or not, which is, or shall hereafter be held to be, a public service". A "customer" is defined to "mean and 11 include any person, firm, corporation, public service district or any ;! other entity who purchases such services or product for resale."

i( Ij CONCLUSIONS OF LAW ' I

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1. After reviewing the described transactions, it is clear that the individual water users in the Crystal Springs area are purchasing water service from the City of Elkins. The City of Elkins does not bill the Association for water service, and the Association does not resell any Ii !I water service to the Crystal Springs residents. The direct utili- ty/customer relationship is therefore established between the City of 1; I j Elkins and each individual Crystal Springs resident. I! I ?

2. The City of Elkins refuses to allow any customers to tie into 1 1 I j

the Crystal Springs lines until they pay a "membership fee" of $358 to the Association, in addition to the City's normal tap fee. By this action, 1 1 customer, the Crystal Springs resident, and the utility, the City of Elkins.

the City is effectively interposing the Association between the individual

3. The Commission's rules and established policy are clear and i i unambiguous. A public utility is to own and operate each utility main I /

upon which it relies to render service to its individual customers. See 1 1 Hurst v. West Virqinia Water Company, Case No. 8850, 66 ARPSCWV 248 1 1

ti

(1978), reconsideration, 66 ARPSCWV 256 (1979), aff'd sub nom., West \ ! Augusta Development Corporation v. Public Service Commission, Slip Opinion i ; No. 14585, 67 ARPSCWV 163 (1980); Burns v. The Sanitary Board of the City of Huntinqton, Case No. 82-259-S-C, 70 ARPSCWV 1571 (1982); Grayley v . Lincoln Public Service District, Case No. 87-082-W-C and Liebert v. Lincoln Public Service District, Case No. 87-087-W-C (August 20, 1987 1 ; Final Order and October 13, 1987 Commission Order); Mountaineer Heights 1 1 Homeowners Association v. Pinch Public Service District, Case No. 1 , 87-269-W-C (July 8, 1988 Recommended Decision, which became a final order of the Commission on July 8, 1988); and Volk v. Broadmoor/Timberline Apartments, Case No. 87-342-S-C (December 13, 1987 Recommended Decision, April 15, 1988 Commission Order); Broadmoor/Timberline Apartments v. Public Service Commission, - W.Va. 376 S.E.2d 593 (1988); and Town of Athens, Case No. 91-727-W-P (April 10, 1992 Recommended Decision, which became a final order of the Commission on April 30, 1992).

4. As described in the cases cited above, the underlying Commission /1 policy is that a public utility is to maintain control over the mains, li I appurtenances and facilities upon which it relies to render public utility 1 1

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service to its customers. In-this case, as in Mountaineer Heiqhts Home- owners Association v. Pinch Public Service District, Case No. 87-269-W-C,

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once a public utility establishes individual meters to the individual residences within an association's territory and begins billing each customer the utility's full metered rates for service, the utility is expected to obtain the appropriate dominion and control over the main lines to ensure that the utility renders safe and adequate service to its customers.

5. The ALJ does not find any sufficient reason in this case to ignore or bypass the established Commission policy. The City of Elkins has been billing the customers on this line according to its full tariff rates for over forty years, without paying for any routine maintenance or repair of the lines. Therefore, the City has been enriched by charging its full retail rate to these customers without providing the full bene- fits of utility service to them. Although the City maintains that a large portion of the mains will need to be eventually replaced, these replace- ments are only required to be conducted in the normal course of routine repair and maintenance services, as the old Transite pipe breaks or leaks.

6. In consideration of established Commission policy, the City of Elkins should be required to obtain clear title and ownership over the mains and appurtenances, previously constructed by the Rural Elkins Community Association, which are relied upon to render utility service to the residents and businesses in the Crystal Springs area. To perfect clear title in the necessary facilities and rights-of-way, and to promote the effective and efficient operation of the water distribution system, the ALJ finds it reasonable to require the Rural Elkins Community Associ- ation to deliver clear title in the transferred facilities and rights- of-way as a condition of the transfer, and provide reliable as-built maps and drawings of its constructed lines and facilities. Until such transfer is completed, the ALJ finds it appropriate to require the City of Elkins to perform requested maintenance and repair on the lines and appurtenances at no additional charge to the Association.

ORDER

IT IS, THEREFORE, ORDERED that, within ninety (90) days of the date of this order, the City of Elkins is hereby required to obtain clear title and ownership over the utility mains and appurtenances, previously con- structed by the Rural Elkins Community Association, which are relied upon to provide public utility water service to the residents and businesses in the Crystal Springs area, along with the necessary utility rights-of-way to maintain that system. As a condition of this acquisition, the Rural Elkins Community Association is hereby required to supply the City of Elkins with reliable as-built maps and drawings of its constructed lines and facilities, and deliver clear title in the transferred facilities and associated rights-of-way.

IT IS FURTHER ORDERED that, until the transfer of facilities required above is completed, the City of Elkins is hereby required to perform maintenance and repair on the lines in question at the request of the Rural Elkins Community Association, at no additional charge to the Asso- ciation.

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The Executive Secretary is hereby ordered to serve a copy of this Drder upon the Commission by hand delivery, and upon all parties of record ~y United States Certified Mail, return receipt requested.

Leave is hereby granted to the parties to file written exceptions supported by a brief with the Executive Secretary of the Commission within Eifteen (15) days of the date this order is mailed. If exceptions are €iled, the parties filing exceptions shall certify to the Executive secretary that all parties of record have been served said exceptions.

If no exceptions are so filed this order shall become the order of the Commission, without further action or order, five (5) days following ihe expiration of the aforesaid fifteen (15) day time period, unless it is xdered stayed or postponed by the Commission. ,:

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Any party may request waiver of the right to file exceptions to an 11 Jdministrative Law Judge's Order by filing an appropriate petition in / i miting with the Secretary. No such waiver will be effective until I /

3pproved by order of the Commission, nor shall any such waiver operate to Ij Rake any Administrative Law Judge's Order or Decision the order of the 11 :ommission sooner than five (5) days after approval of such waiver by the !: :ommission. !!

i : I

Robert F . Williams Administrative Law Judge

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