CHARLESTON

Entered: Apri 1 17, 1997

CASE NO. 96-1186-S-C

SCOTT A. PERRY, 508 50th Street, Charleston, Kanawha County,

Complainant,

V.

CHARLESTON SANITARY BOARD, a municipal corporation,

Defendant.

RECOMMENDED DECISION

On September 20, 1996, Scott A. Perry (Complainant), 508 50th Street, Charleston, Kanawha County, filed a formal complaint, duly verified, against Charleston Sanitary Board (Defendant), a municipal corporation, alleging damage to his property as a result of improper maintenance of the Defendant's sewer lines. The Complainant also requested monetary relief for the damage to his residence and that the Defendant maintain its system to prevent the recurrence of the incident.

By Order issued September 2 0 , 1996, the Charleston Sanitary Board was directed to satisfy said complaint or make answer thereto, in writing, within ten days of the service upon it by certified mail of a copy of said complaint and a copy of the September 20, 1996 Order in accordance with the provisions of Rule 7 of the Commission's Rules of Practice and Procedure.

On October 25, 1996, Commission Staff filed its Initial Joint Staff Memorandum indicating that the Commission does not have jurisdiction to issue monetary awards. Commission Staff further questioned whether the Defendant was providing adequate maintenance of its system in order to provide the Complainant and other customers with safe and adequate service. Staff indicated that it would investigate the matter and issue a final recommendation. Staff recommended that the matter be referred to the Division of Administrative Law Judges.

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By Order issued November 4, 1996, this matter was referred to the Division of Administrative Law Judges for a decision to be rendered on or before April 17, 1997.

On November 20, 1996, the Complainants advised that a second occurrence had taken place on November 8, 1996, at the same location with additional costs having been incurred by the Complainants.

By Order issued January 28, 1997, this matter was set for hearing to be held on February 18, 1997 , to commence at 10:00 a.m., in the Commission's Hearing Room, 2 0 1 Brooks Street, Charleston, West Virginia.

The hearing convened as scheduled. The Complainant appeared se. Mark A. Kauffelt, Esquire, appeared upon behalf of the Defendant. Staff was represented by J. Joseph Watkins, Esquire.

On March 21, 1997, the Charleston Sanitary Board filed a brief asserting that the record does not contain a correct description of the sewer lines and that a final decision cannot be made in this complaint.

On March 21, 1997 , Commission Staff filed an initial brief supporting its recommended relief as a result of the sewer back-ups. Staff filed a reply brief on April 1, 1 9 9 7 .

EVIDENCE

This complaint is a result of sewage backed up in the basements of 5 0 6 and 5 0 8 50th Street, Charleston, West Virginia, on two separate occasions during a six-month period in 1996. The complaint requested monetary relief for damages that resulted because of the sewage basement flooding and that the Defendant be required to maintain its system to prevent the recurrence of the flooding.

The first person to testify was Scott Ferry of 508 50th Street, S.E., Charleston, West Virginia. Mr. Perry testified that, on or about July 3 0 , 1996, the City of Charleston's sewer system backed up into the basements of 5 0 8 and 506 50th Street. Tracy's Beauty Cottage and Day Spa, Mr. Perry's wife's business, is located at 506 50th Street. Both properties are owned by Mr. and Mrs. James E. Johnson, also of Charleston. The properties have been occupied for 37 years and have never experienced sewer problems in the past. Rain fell during the night and, by 8:30 a.m., sewer waters had flooded the basements of both properties. (Tr., p. 7 ) . The beauty salon and spa sustained severe losses as a result of the sewage back-up. (Tr., p. 8) .

Mr. Perry feels that a thorough investigation was never done by the City or its insurer. (Tr., p . 8 ) . He feels the City is well aware that problems exist with its sewer system because numerous newspaper articles have been written regarding the problems. (Tr. , p. 9 ) . A City employee named Jacob Hersman confirmed that the City was aware that a problem exists with its sewage system because the storm drains and sewer lines are still combined. (Tr., pp. 9-10, 14). Mr. Perry contacted the City and spoke with

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someone with the Street Department. The Street Department Commissioner thought that the complaint of the backed-up sewage in the two residences was humorous and made a “spectacle of the call” by placing it on a speaker phone. (Tr., pp. 10, 13). Mr. Perry then contacted the Sanitary Board. The Fire Department was contacted to see if it would help remove the sludge/water, but help was refused. (Tr., p. 10). The first written complaints and affidavit filed with the City were lost by the City Clerk‘s office. (Tr., p. 10). The Perrys also contacted the City Councilman for Kanawha City, to no avail. (Tr., pp. 37-38).

Mr. Perry was looking out of a window on 504 50th Street, his temporary housing location, when he noticed two (2) feet of water standing in the driveway of 508 50th Street. After further investigation, he noticed approximately 18 inches of water standing in the doorway leading into the basement. The building at 508 50th Street is being remodeled for the Perrys and all of their personal belongings were being stored in the basement of the house. Black thick water and sewer sludge were in the basement. Mrs. Perry discovered about a foot of the black sewage sludge in the basement of her salon at 506 50th Street. (Tr., pp. 12-13). The second time the sewage flooding occurred, the beauty salon (506 50th Street) had approximately 2 feet of sewer sludge in its basement and the residence (508 50th Street) had approximately 18 inches of sludge and water in the basement. (Tr., p. 1 3 ) . The basement of the property located at 5 0 8 contains a family room, a bedroom, a bath, a small kitchen and a one-car garage. (Tr., p . 3 0 ) .

The beauty salon and spa business was closed for several days. The Perrys were required to take extensive measures to clean up and sanitize the property. (Tr., p. 16). The Perrys wore moisture resistance suits and took a dump truck full of the sewer sludge to the City landfill. (Tr., p. 30). The initial cleanup took approximately two or three days. The Perrys have not completed the cleanup from the last occurrence. (Tr., p. 30).

On cross-examination, Mr. Perry explained that he started calling the City about the first back-up incident around 9:00 a.m., but did not receive some type of satisfactory response until around noon. (Tr., p. 23). After Mr. Perry contacted the Mayor’s office, someone from the Sanitary Board arrived within an hour after the second occurrence. The Perrys also contacted a plumber to determine if the back-up was a result of a problem on the service lines. The plumber advised that the problem did not exist in the service line, but in the main sewer line. (Tr., p. 25). The Sanitary Board’s truck used some type of device to cause the water to rescind in the two basements on both occasions. (Tr., p. 24).

The City required that a catch basin be installed on the parking lot of the property located at 506 50th Street before the beauty salon could obtain its certificate of occupancy from the City, approximately 18 months ago. (Tr., pp. 26-27). Catch basins are located in front of the garage on the property of 508 50th Street and in front of the funeral home; at the corner of Venable Street and 50th Street; and in the back of the alley. (Tr., pp. 27, 28). Mr. Perry did not know if the roof drains of the house went into

, the sewer system or the storm basin. (Tr., p . 3 1 ) .

Neither service location has experienced a sewer back-up since November 8, 1996. No one from the City has ever contacted the Perrys about a check

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valve being placed on the sewage line. (Tr., p. 39). The Perrys have had a pump and sixty feet of line installed to help prevent another flooding. The pump turns on when the water rises in the basement to a specific level. (Tr. ; p. 39 ) . Mr. Hersman of the Sanitary Board was notified about the pumping system. (Tr. , pp. 40-41). Mr. Perry does not believe that the Charleston Sanitary Board has provided him with safe, adequate and continuous sewer service. (Tr., p. 41).

The next person to testify was James E. Johnson, owner of the properties located at 506 and 508 50th Street, Charleston, West Virginia. (Tr. , p. 49). Mr. Johnson has owned the funeral home next door for approximately 37 years. He bought the residence and the property where the beauty salon is located in 1969-70. Both 506 and 508 50th Street have been residences and, at one point, housed a computer store operation. (Tr., p. 68). One of the buildings also housed a licensing service. (Tr., p. 67). As landlord, Mr. Johnson was not aware of any flooding occurring in the basement nor was he ever notified of any problems regarding back-up in the basins. (Tr., pp. 50-51, 69). The City’s old sewer system runs below 50th Street. Storm drains were installed along Washington and Venable Avenues several years ago. The funeral home’s sewer drains run down the left side of the funeral home into the sewer drain in the middle of 50th Street. The sewer lines to 506 and 508 50th Street drain into the alley. (Tr., pp. 50, 51, 6 0 ) .

The property at 506 50th Street was extensively remodeled for the beauty salon and day spa. The City required that drains and a catch basin be installed in the paved driveway. There are three lines shallowly buried under the ground for storm lines. The sewer lines are buried more deeply. (Tr., pp. 56-59). Mr. Johnson believes that the catch basin is connected to a line that goes into the alley. (Tr., p . 59). The original sewer lines for the properties and catch basin are approximately 10 to 15 feet below the surface and were installed when the houses were built approximately 3 0 years ago. The roof drains were installed approximately seven or eight years ago and are not installed as deep as the other lines. (Tr. , p . 62). Mr. Johnson testified that he can disconnect the down spouts and let the roof drain water run on the ground. However , he feels the ground water eventually goes into the sewer. (Tr., p. 63). The roof drain on 506 50th Street does not enter the storm or sewage systems. (Tr., p. 64).

Mr. Johnson couldn’t remember the exact date of the first occurrence, but acknowledged that the Sanitary Board arrived a few hours after being called. He advised that the City had been doing work in the area on the drains up the street a week before the first incident occurred and questioned whether the work done during that period would have caused the

, sewage back-ups. (Tr., p. 67).

The next person to testify was Tracie Perry. Mrs. Perry runs the beauty salon and a day spa located at 506 50th Street, Charleston, West Virginia. (Tr., pp. 72, 73). Mrs. Perry testified that her husband, Scott, contacted the City about the back-up and that she was not aware of many of the details regarding the notification of the occurrences. She is not familiar with any of the sewer locations or lines. Most of Mrs. Perry‘s testimony related to the devastation and damage caused by the occurrences. (Tr., p. 73).

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The first time the sewage backed up, Mrs. Perry noticed things floating in the driveway adjacent to the house. One of the individuals working in the beauty salon advised her that the basement had been flooded. She explained that an awful stench permeated the beauty shop. All of her baskets and other working items were floating in the sludge in the basement. Mrs. Perry described the sludge as a thick, black, greyish liquid, with the smell of a toilet that hadn’t been flushed for a week, and with a watery consistency that could be strained with a spaghetti strainer, leaving residues. (Tr., pp. 74, 8 2 ) . She was forced to close her businesses as a result of both occurrences. (Tr., p. 74). The water and sludge came from a small drain in the floor of the basement. Mrs. Perry confirmed that the waters receded out of both basins after the City workers did some type of work on the sewer system outside the residence and beauty salon. (Tr., pp. 75, 79-81).

Mrs. Perry was not aware of any individual from the City‘s insurance company or the City making an on-site investigation of the 5 0 6 50th Street location the days of the occurrences. (Tr., pp. 75-76). When asked what type of investigation Mrs. Perry expected the City to conduct, she responded that she expected someone to visit the sites and confirm that the two basements had been flooded; acknowledge that the service lines had been checked; take an inventory of the things that were lost; and make an assessment of damages to the property. (Tr., pp. 78-79). She feels they were misled by a letter indicating that an investigation would occur. (Tr., p. 79).

The first person to testify on behalf on the City of Charleston Sanitary Board was Jacob Hersman. Mr. Hersman runs the high velocity truck for the Sanitary Board. (Tr. , p . 96). The velocity truck cleans sewage lines. Two or three people usually work on a shift. He feels the Sanitary Board‘s response time to a blocked line is usually 3 0 to 40 minutes. (Tr., p. 97) . The employees on the truck are dispatched to a location site through a radio call from the person who takes the initial call from the customer. (Tr., p. 9 8 ) . Mr. Hersman responded to the calls for 506 and 508 50th Street on both occasions. (Tr., p. 98). The Sanitary Board’s crew checked a couple of its manholes before working on the line that was blocked on the first occasion. The Sanitary Board’s main sewer line was blocked just outside its manhole. The manhole was about one-half full. The high velocity hose was used to break up the stoppage. The blockage appeared to be a result of some type of grease. (Tr., pp. 99-100) .

After the first incident, the crew did not investigate how the lines from 506 and 508 50th Street run into the City’s line. After the second incident, the Board did a dye test on the catch basin at the bottom of the driveway on 506 50th Street and learned that the catch basin came out of a 6-inch line. (Tr., p. 100). The Board did not do any other tests on any of the other lines other than the one from the catch basin located in t h e driveway. (Tr., pp. 100-101). Mr. Hersman could not recall the weather conditions the day of the first visit, but was able to remember that, on t h e second occasion, it was raining. The crew used the truck to unclog the line. (Tr., pp. 101, 1 0 2 ) . Mr. Hersman explained that Mr. Perry asked him to look into the house so that he could verify that the basements were flooded. (Tr. , p. 102) . The crew on the velocity truck fills out a small work order on each job done each day. The dye test on the catch basin was

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done approximately two weeks prior to the hearing and no further investigation has been made regarding the line. (Tr., p. 1 0 6 ) . Mr. Hersman explained that , if the City’s manhole has any water in it, the Perrys service line has got water in it. (Tr., p. 1 0 9 ) .

Bill Summerfield, the dispatcher, takes customer complaints and directs the crew to the complaint location. The crew provides a small description of the action taken for each call for its records. (Tr., p. 114). Mr. Hersman confirmed that the City receives several complaints when it rains. (Tr., p. 115). Mr. Hersman could not confirm the location where the Complainant’s lines enter the Sanitary Board‘s main. (Tr., p. 1 1 9 ) . He also acknowledged that the City has also placed catch basins in several locations that go into the Board‘s sewer lines. (Tr., p. 119). Mr. Hersman clarified that the manhole that was cleaned out on both occurrences was the one located in the alley, not the one located on 50th Street. (Tr., p. 1 2 7 ) . He stated that the clog was about 3 feet out of the manhole in the alley. (Tr., p. 128).

The next person to testify on behalf of the Defendant was James Downey, Operations Manager for the Charleston Sanitary Board. (Tr., pp. 130-131). Mr. Downey is involved in overseeing the operations and maintenance of the treatment works. He maintains the Sanitary Board’s lines and oversees repairs. (Tr. , p. 131). Mr. Downey described the 50th Street area as a residential and commercial area. (Tr. , p. 1 3 2 ) . He confirmed that the Defendant has not performed any television inspections or done any other testing on the Board‘s line which serves the two properties. (Tr., p. 1 3 2 ) .

The Sanitary Board receives complaints by telephone from its customers through a secretary in the Operations Division. The call is then directed to Mr. Summerfield or Mr. Cossin. A customer complaint form is then filled out. Flood reports are radioed to the velocity cleaning truck for the truck to respond. (Tr. , p. 132) . A basement flooding report is created at the end of each week from the customer complaint forms. (Tr., p . 133). The basement flooding report is being prepared for a study to help enable the City to determine if there are specific areas that have hydraulic problems or need further analysis. (Tr., pp. 133-134). The Sanitary Board’s basement flooding reports indicate that two incidences occurred at 5 0 6 and 508 50th Street. The first incident occurred on August 7 , 1 9 9 6 . The Sanitary Board made an on-site visit to the service locations. Mr. Downey explained that, on July 31, 1996, the City of Charleston experienced one of its heaviest rain falls. (Tr., p. 135). The Sanitary Board’s records did not reflect an on-site visit to the Perry/Johnson property on July 31, 1996. The Defendant cannot find an earlier report indicating that work had been done at 506 or 508 50th Street prior to the two incidences complained of by the Complainant. (Tr., p . 139). The second incident occurred on November 8, 1 9 9 6 . (Tr., p . 139).

The City has an ordinance mandated by EPA under the Clean Water Act of 1 9 7 2 , which prohibits certain substances from being discharged into the sanitary sewer system. The ordinance provides that a customer must meet the requirements of the pretreatment ordinance in order to get the elements into , the system. Grease, oil and other petroleum products are prohibited from being discharged into the system. (Tr., p. 140). The City requires that dischargers of large grease, such as restaurants, grocery stores and schools, install grease traps to intercept grease before a waste flow

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discharges into the sewer system. (Tr., p. 141). The City has at least 500 customers that have installed grease traps. Mr. Downey feels that it is very difficult to enforce the pretreatment ordinance or determine if it is being followed on a continuous basis. (Tr., p. 141). He acknowledged that grease buildup is a common occurrence in the Charleston Sanitary Board lines in areas that contain restaurant hookups. (Tr., p. 142). He feels that the only way that grease could be in the 50th Street line is if there is a blockage in the line causing the grease to move down the line which would in turn get surcharged and forced back up through the line. (Tr., p. 142). He feels that the only establishment in the area that could be causing grease to be in the line is the Foodland store. The Foodland is connected to the line located in the same alley as 506 and 508 50th Street. The store was inspected and it was discovered that Foodland's deli had not installed the grease trap. (Tr., p. 143). The alley line is an 8-inch sewer line which is being utilized as a combined storm and sewer line. The closest storm line to the property is on Washington Avenue. (Tr., p. 145). The Sanitary Board feels that, on the first occurrence, the sewer was only partially blocked. However, the line may have been either totally blocked or restricted enough to cause the line to surcharge on the second occurrence. (Tr., p. 144).

The City passed an ordinance in the late 1970s prohibiting storm water entry into the sanitary sewer lines for new connections unless the general manager of the Sanitary Board deems the discharge of the storm water on top of the ground to be an endangerment to the private property in that immediate area. Therefore, the general manager has the authority to grant exceptions to the ordinance. (Tr., p . 146). Mr. Downey was not aware of the Sanitary Board giving permission for the catch basin located on the parking lot of 506 50th Street to be connected to its line. (Tr., p. 146). Since the Sanitary Board is a separate entity from the rest of the City, it is unaware of other permitting requirements. Mr. Downey admitted that, in the last twelve months, communication has existed between the departments, but, prior to that time, very little was done. (Tr., pp. 153, 154). The Sanitary Board has been under a consent order from the Department of Environmental Protection since October 1995, which requires the Sanitary Board to comply with the combined sewer overflow policy of the EPA. The Board has minimum controls that must be met by January 1997. The Board has been directed to minimize the amount of storm water entering its sewer system. The Building Commissioner has been directed not to issue a permit if there is an alternative to allowing storm water to be connected to the sewer system since October 1995. (Tr., p. 147). Mr. Downey suggested that the Perry/Johnson property storm drains be rerouted to Washington or Venable Avenue. (Tr., p. 148). Mr. Downey did not know what caused the sewage to back up into the basement at the two service locations, but didn't view the problem as a maintenance problem, but as a pretreatment problem. (Tr., pp. 144, 145, 148). The Board views maintenance as the maintaining of the sewer lines to allow flow to go through it, rather 'than preventing the discharge of certain materials into the system. (Tr., p . 149).

The City has not been able to televise its sewer lines in the area to determine where the storm and/or sewer lines of the two service locations are located. (Tr., p. 150). The Sanitary Board is willing to televise the sewer lines in the alley and to dye test each service location to determine where the sewer lines enter the system. Mr. Downey explained that the Sanitary Board has an electronic pipe locator and is willing to locate the

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other lines on the properties. (Tr., p. 1 5 0 ) . The Board believes that the only way it can locate the source of the grease is to follow the trail with a TV camera. (Tr., pp. 150-151) . The Sanitary Board is prioritizing a list of improvements to its system. A storm drain project was constructed in the Kanawha City area in the 1 9 7 0 s . Mr. Downey could not explain why some of the roof drains are still connected to the sanitary lines. (Tr., pp. 154- 1 5 5 ) . Mr. Downey does not feel that the 8-inch line located in the alley was originally designed as a combined water and sewer line, but confirmed that it is operating as such at this time. (Tr., p. 1 5 7 ) . Mr. Downey feels the problem with the flooded basements is related to line size because many customers experience flooding because of the combined storm/sewer lines. (Tr., p. 1 5 8 ) .

Mr. Downey was not aware of any contact with Mr. Willis Corroon or the City‘s insurance company, regarding this complaint. (Tr., p. 1 5 9 ) . He acknowledged that the Sanitary Board has assisted some individuals with clean-ups, but does not know the criteria used to determine which customers are helped. The Board has also helped customers pump out basements depending upon the urgency and other pending complaints or requests. However, Mr. Downey doesn‘t feel that assisting the customers who have had their basements flooded by sewer waters is the Sanitary Board’s standard policy. (Tr., pp. 1 6 0 - 1 6 1 ) .

The Sanitary Board consists of three members. The Mayor is the Board’s Chairman. Mr. Downey, as an employee of the Sanitary Board, does not have the authority to make any type of policy decision. Mr. Downey acknowledged that the Sanitary Board‘s service needs to be improved regarding basement flooding, but does not feel that there is any type of routine maintenance on 350 miles of line that can be done to help eliminate such problems as grease buildup. He feels that it would be very difficult to do routine inspections of the lines and noted that not all incidents that cause flooding are gradual buildups. (Tr., pp. 1 6 2 - 1 6 3 ) . The present sewer system has a high well alarm at each pumping station that signals when an unusual high level is in the wet well. This allows the Board to respond to the high level. The system has 7 0 sewage pump stations.

Mr. Downey agreed at the hearing to have the high velocity truck check the line near the two service locations to make sure that grease does not build up in the line until the source of the problem is determined or located. (Tr., pp. 1 6 6 - 1 6 7 ) . He explained that it is not the Board’s policy to have check valves installed. Check valves are easily lodged open with solid material and may not work properly. He admitted that a check valve had been installed on the Board’s sewer line in the past. (Tr., pp. 167, 1 8 2 ) . Mr. Downey also acknowledged that it is possible that the City is instructing individuals to connect their service lines to the wrong system even though the City has had ordinances requiring that storm water be kept separate from sewer lines on new construction since the 1 9 7 0 s . (Tr., pp. 170-171) . The Board does not categorize a one-time sewage back-up in a basement as a recurring event. He feels the back-up should be investigated if the matter happens more than once. (Tr. pp. 1 7 5 - 1 7 6 ) . Mr. Downey acknowledged that a sewerage back-up in a customer’s basement does not constitute safe, adequate service. (Tr., p. 1 7 5 ) .

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The next person to testify on behalf of the Defendant was Mike Cossin. Mr. Cossin is the Superintendent of the Sanitary Board's Maintenance Department. (Tr., p. 191). He reviews complaints filed by customers. (Tr., p. 191). The City Engineer's Office or Building Department issues the permits. Mr. Cossin is the last person to be advised when the Engineer's Office or Building Department has issued a permit that affects the sewer line. (Tr., p. 1 9 2 ) . He wasn't aware that a problem exists at the Johnson/Perry service locations, other than that grease was discovered in the line. Mr. Cossin instructed the person who takes care of the pretreatment to investigate the area. (Tr., p . 1 9 3 ) .

Staff called as its only witness David A. Hippchen, a professional engineer in the Water and Wastewater Division of the Public Service Commission. (Tr., p. 1 9 5 ) . Mr. Hippchen made a field investigation at the service location in November 1996 and January 1997. (Tr., p. 196). Mr. Hippchen also met with the Sanitary Board's Maintenance Department regarding its responses to the complaint. (Tr., p. 196). He sponsored two maps depicting the area. (Tr., p. 1 9 7 ) . Staff believes a storm water system and a sanitary system exist in the alley. Staff believes the catch basin located in the parking lot of 506 50th Street is attached to the storm system. Staff also believes that the storm line flows toward the direction of 50th Street and then flows into the sanitary line. (Tr., p. 199). He noted that the parking lot catch basin is not tied into the other three drop inlets. (Tr., p. 2 0 0 ) . Mr. Hippchen feels that a covered manhole is located halfway up the sanitary line. (Tr., p. 200). Staff noted that its information was obtained from the records kept by the Sanitary Board. The records indicate that a grease buildup or some other type of buildup existed in the Sanitary Board's main line. Staff was advised that the blockage occurred between Manhole No. 1 and Manhole No. 0 located on 50th Street. (Tr., p. 2 0 0 ) . Staff noted that a video inspection was attempted on the manhole on 50th Street between Venable Avenue and MacCorkle Avenue on September 18, 1996. However, the camera was not able to proceed through the line because it ran into a blocked condition. Because the line was blocked, the inspection was terminated. A voice on the video indicated that the line was blocked. Staff was not aware of any other video inspections other than the one performed on September 18, 1996. (Tr., p. 201).

Mr. Hippchen explained that the sewage from Foodland would flow westward on MacCorkle Avenue to the intersection of 50th Street and MacCorkle. (Tr., p. 201). Staff believes that any grease deposits in the Sanitary Board mains would have to collect in the manhole at the intersection of 50th Street and MacCorkle. H e feels the 50th Street line could qualify as a main interceptor. (Tr., p. 202) . For grease to cause some type of sluggish flow downstream from the Perry/Johnson property, the water would not be flowing freely on either 50th Street or in the alley. (Tr., p. 203). Staff does not feel that the two occurrences at the service location constitute adequate and continuous service, as required by Rule 5.1.4. of the Commission's Rules and Regulations for the Government of Sewer Utilities (Sewer Rules). (Tr., p. 2 0 3 ) . Staff believes that the Board's service fails in all regards and that, once the wastewater leaves the customer's premises and is discharged into t h e sewer main of the utility, it is the responsibility of the utility to transport and dispose of the wastewater. Whether or not the Sanitary Board was negligent, the fact is, the Defendant did not comply with the Commission's rules. (Tr., pp. 2 0 3 - 2 0 4 ) .

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The Charleston Sanitary Board has an extensive sewer system. Staff acknowledged that it is very difficult for the Defendant to predict all circumstances where back-ups could occur. Staff believes that the Board will have problems with back-ups in its system and installing backflow preventers on service lines can be a remedy for many of its problems. While it may not be a reasonable practice to install a backflow preventer on every basement in the Defendant’s service territory, Staff believes that the Board should install them where it knows it can be of help in a particular area. (Tr., pp. 204-205). Staff recommended that backflow preventers be installed and maintained on the service lines at 506 and 5 0 8 50th Street because the Board has been experiencing problems with the lines in the area. Staff recommends that the Defendant conduct a video inspection of the 50th Street line between Washington Avenue and MacCorkle Avenue and the line in the alley between Manhole No. 1 and Manhole Zero. A follow-up video should be done at Foodland to ensure that a grease trap has been installed, even if it does not directly affect the service to the Perry/Johnson service locations. Staff recommended that the Sanitary Board restore the Perry/Johnson’s property to pre-flood conditions. Staff believes it is reasonable to require the Sanitary Board to provide cleanup services through their own personnel or independent contractors. Staff recommended that the Defendant conduct an assessment of the damage to properties because of the discontinuity of the service provided to the service locations. (Tr., pp. 206-207).

Staff recommended that the Defendant trace the Perry/Johnson lines to determine whether the roof drains are tied into the storm drain system or the sanitary system. Mr. Hippchen believes that the beauty salon lines run into a common line in the alley which flows into the main sewer. (Tr., p. 209). Staff also feels that the Sanitary Board should follow up and be responsible for complaints from start to finish in order to determine how they are able to respond and help its customers. (Tr., p. 211). Two lines exist at the manhole near the alley. One of the lines is deeper in the ground than the other. (Tr., pp. 216-217). Staff believes that there are two lines from the properties and one main sewer line. (Tr. p. 219) . There also appear to be five other houses in the area that are tied into the line located in the alley. (Tr., p. 219). Mr. Hippchen stated that any building with a working kitchen could produce the grease buildup in the Defendant’s line. (Tr., p. 220). However, he explained that an individual service line usually clogs up because of the grease before it reaches the main sewer line. (Tr., p. 220). Staff did not investigate the specific source of the grease because it was more concerned with the discontinuity in service than the source of the problem. (Tr. , pp. 220-221). Staff is concerned that the Sanitary Board has not determined the source of the grease or the reason for the customer‘s problem by the date of the hearing. (Tr., pp. 221-222).

Staff does not believe that it is acceptable for the Sanitary Board to refuse to assist its customers with sewage basement flooding or to deny responsibility of the back-up regardless of the cause. (Tr., pp. 224-226). The Board is responsible for providing adequate service to its customers; maintaining its operations; and preparing the designs of its mains, not the customer. (Tr., p . 224). Mr. Hippchen noted that the Board‘s records did not indicate that the customer or customer’s line contributed in any way to this problem. (Tr., p. 224). Staff believes that the Board is responsible

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for making a determination at the time of the back-up whether the customer is contributing to the problem. (Tr., p. 2 2 5 ) . Staff explained that, once a utility takes sewage from a customer, it cannot give it back for any reason. Staff believes that the Board's field personnel may have to make some type of determination if a customer's line is contributing in some way to the problem at the time of the occurrence. Staff feels that a back-up indicates that the Sanitary Board is not in compliance with the Public Service Commission's rules and regulations and is not providing safe, adequate and continuous service. (Tr., p. 2 2 7 ) . Staff does not feel it is a reasonable practice for a utility, whether it is the Charleston Sanitary Board or any other sanitary sewer utility, to tell the customer "you are on your own." Staff feels that, if the Board can verify that a customer is responsible for the block, the customer can be held responsible for the blockage. (Tr., pp. 2 2 8 - 2 2 9 ) .

Staff explained that sanitary sewer utilities are different from other utilities in that it is the only utility in which the customer sends something to the utility, instead of the utility sending services to the customer. Since there is usually a direct interface or open connection between the customer and the utility, the customer cannot disconnect or shut off the service at the time a problem occurs. (Tr., p. 2 3 0 ) . Staff feels that, under the Commission's rules, the problem is the utility's responsibility and that the utility has to comply with the Commission's regulations in order to provide safe, adequate and continuous service. (Tr. , pp. 2 3 0 - 2 3 1 ) . Mr. Hippchen noted that, whether it is a municipal government, district or any other utility providing sewer service, the sewer service has to be safe, adequate and continuous. (Tr., p. 2 3 2 ) .

Staff feels that cleanup of the property as well as replacement of items attached to the dwelling and those not physically attached are part of the restoration required of the utility. (Tr., p. 2 3 3 ) . Staff feels that, in the instant case, there were observed damages to items stored in the basement and also observed damage to the structure itself. (Tr., p. 2 3 3 ) . Staff feels that the Complainant's personal property should either be restored or replaced. (Tr., p. 2 3 4 ) . Staff does not feel that its recommendation constitutes an award of monetary damages. (Tr., p. 2 3 4 ) . Staff believes there is a difference between ordering a utility to replace some things at a value of a specific amount and awarding that amount of money in damages. (Tr., pp. 234-235) . Staff believes that its recommendation is based on the reasonable practices that should be undertaken by the utility and one of the recommendations is to restore the property that is damaged, whether it is part of the structure or whether it is material stored within the structure. (Tr., p. 2 3 5 ) . Staff believes that its recommendation in this case deals with a service-related problem, unlike some other damage complaints the Commission receives. Mr. HippChen believes this complaint is related to the type of service provided by the Defendant. (Tr., p. 2 3 7 ) .

Staff's recommendation to install a backflow check valve is one that is usually required after the fact. Staff was not aware of any instances where one was installed ahead of time before a problem exists. (Tr., p. 2 3 8 ) . Staff noted that it believes the communication between the utility and the customer must be good when defining when the property is properly restored. (Tr., pp. 2 4 0 - 2 4 1 ) .

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Staff regarding t occurrences

indicated that it has not done any type of investigation .he duration and intensity of any type of rain fall during the and acknowledged that sewer systems are built on peak demand.

(Tr:, p. 2 4 3 ) . Mr. Hippchen also acknowledged that systems that are disigned to carry both storm water and sewage have to take into account rainfall. (Tr., pp. 243-244) . A utility must also take into consideration whether culverts, open ditches, or open channels exist on the system. The utility must take into consideration flows entering the system and whether the infiltration will exceed the system’s capability. If back-up occurs, the utility must evaluate what type of damages and risks of damage exist. (Tr. , p. 2 4 5 ) . Hydraulic conditions at the residential property at 50th Street could cause the check valve for the beauty salon property to work improperly. (Tr., pp. 250-251. Staff voiced a concern about how long the Sanitary Board would continue to check its lines on 50th Street to ensure the grease back-up or other back-up did not recur if the backflow preventers are not installed. (Tr., p. 2 5 3 ) .

A briefing schedule was established and the case was submitted. (Tr., pp. 2 5 7 - 2 5 8 , 2 6 1 ) .

DISCUSSION

The Perrys and Johnsons have sustained two sewer back-up basement floods in a period of six months as a result of the Charleston Sanitary Board‘s failure to provide the service locations of 506 and 5 0 8 50th Street, Charleston, with safe, adequate and continuous sewer service. The Perrys and Johnsons have sustained damages to their properties on both occasions as well as endured the frustration and inconvenience of these events. The Complainant requests monetary damages and that the Public Service Commission cause the Defendant to prevent future back-ups in the two service locations. West Virginia Code § 24-4-7 provides that the Commission has no jurisdiction to award monetary damages for the damage done to the Perry or Johnson properties or lost income. Therefore, the Administrative Law Judge will concentrate on the Defendant’s practices and procedures which led to the interruption of safe, adequate and continuous sewer service to the service locations at 506 and 508 50th Street. She also wishes to note that she does not have the authority to correct or change any of the City’s ordinances or their enforcement of the ordinances other than any discriminatory practices by the Defendant.

The Defendant’s records indicate two complaints at the sites, on August 7 , 1996, and on November 8, 1996. (Tr., 1 3 9 ) . The Sanitary Board’s Operations Manager, James Downey acknowledged that sewage back-ups do not constitute safe, adequate and continuous sewer service. J. Hersman, one of the Board’s velocity truck crew members, also confirmed that two complaints were filed at the service location and that the Board’s equipment was utilized to clean the lines so that the sewer water could flow freely. Mr. Hersman testified that a blockage existed about three feet from the manhole in one of the Board’s lines in an alley on at least one of the occasions. He also was made aware of the back-up in the basements of the service locations. The Perrys’ testified that the sewer water rescinded after the velocity truck hose was used to clean the Board’s line. The Administrative Law Judge is satisfied

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that the Defendant failed to provide the Complaint with safe, adequate and continuous sewer service on at least two occasions.

On March 21, 1997, the Defendant filed a post-hearing brief asserting that the Administrative Law Judge did not have sufficient information in this case to make a final decision because she does not have a correct description of the sewer lines or the blockage. She agrees that the Perrys and the Johnsons may not know the configuration of all the service lines on the property. However, Staff reviewed the Defendant’s records and provided two maps and enough information in this case for the Administrative Law Judge to determine that the Defendant is not providing adequate service pursuant to the Commission’s Rules and Regulations for the Government of Sewer Utilities. The accuracy of the Defendant‘s records is the Board’s responsibility. The Defendant psssesses the equipment to locate all the lines in question, but chose not to do so prior to the hearing or to make any corrections to the testimony at the hearing. Both Mr. Downey and Mr. Hersman testified that the Defendant did not conduct any tests on the lines except for the dye test of the catch basin. Staff’s testimony revealed that an attempt was made to videotape the line in the alley near the 50th Street manhole but the inspection could not continue because of blockage or build- up in the line. The Administrative Law Judge wonders why the Board did not take appropriate actions at that time so that the videotape inspection could continue. If the appropriate steps had been taken at that time, the second back-up on November 8 , 1996, may not have occurred.

Staff has made several recommendations in this complaint. The investigation and verification of the installation of the grease trap at Foodland should already have taken place if the Defendant followed-up on its 30-day notice. The video inspection of the sewer lines and manholes in the area of the 50th Street main line and manhole as well as the alley line should have already been done as of the date of the order because the Operations Manager indicated that he would be able to get the camera within a week of the hearing. The Administrative Law Judge cannot envision why the Defendant did not investigated the configuration of the lines before the hearing. It has tried to admit this evidence through a post-hearing affidavit of one of its witnesses, evidence the witness should have provided when all parties could have cross-examined him.

The only real objections of the City to Staff’s recommendations appear to be with the installation of the check valves or backflow preventers and the restoration of the properties to pre-flood conditions. The monitoring of the alley line and the 50th Street main line and manhole would have been acceptable to this Administrative Law Judge, if the Defendant had demonstrated that it was working toward a solution to this problem instead of taking a “wait and see” attitude about what the Commission or other entities may require it to do. The ’Defendant admits it has a problem with sewage basement flooding and that said back-ups do not constitute safe, adequate and continuous service. The Administrative Law Judge is also concerned that the Operations Manager sees this problem as a pretreatment problem and not as a maintenance problem. The Defendant is well aware that, while it may have ordinances regarding the separation of its storm and sewer systems, many of its lines are combination lines. The Defendant did not present any type of evidence indicating that all of the service locations in Kanawha City will have separate storm and sewer service lines by any

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specific date. It indicated that it had enforcement obligations, but did not provide any evidence that it was enforcing its ordinances and EPA requirements. Instead, it insisted that the system is too large to maintain or monitor pursuant to those requirements. The Defendant also asserted that it is too difficult for it to ensure that the restaurants are complying with the installation of grease traps.

This leaves the Administrative Law Judge with the decision of what to recommend be done until the Sanitary Board solves its problems in the area. Staff's recommendation to install the backflow preventers is a reasonable one, but may not be a practical one for the business located at 506 50th Street. She feels the Perrys should be given the option of having the backflow preventers installed and maintained by the Defendant or utilizing the pumping system installed in at least one of the service locations as well as to continue to have the Defendant monitor the lines until the problem is resolved. Mr. Perry testified that he installed a system in at least one of the locations. If this system can prevent the back-up from accumulating in the basements of either or both of the location sites, the Administrative Law Judge feels it is a satisfactory solution as long as the Defendant continues to monitor and clean the lines that affect the line serving the Complainant. She feels the Defendant should be responsible for the installation and cost of these pumping systems. Any installations of lines should be done by the Defendant and remain with the properties after the sewer back-up is resolved. If the Perrys prefer the installation of the backflow preventers, the Administrative Law Judge feels they should be installed and maintained by the Defendant. However , she feels the Complainant should be made fully aware of the pros and cons of the backflow preventers before a decision is made by the Complainant.

Staff recommends that the Complainant's property be restored to its pre-flood condition. The Administrative Law Judge does not feel this Commission has the jurisdiction to direct the Defendant to repair any damages done to the real property or replace the personal property or lost income sustained because the beauty salon was closed. In the past, the Commission has required utilities to reseed property; provide fill dirt; provide gravel; and make small repairs that the utility can perform, similar to the restoration required in the only case cited by Staff in its Initial Brief, Mullens v. Corinne Water Works, Case No. 95-1165-W-C. She is not familiar with awards such as this case would require and Staff did not cite a precedent for this type action. The damages as outlined in this case should be addressed in a court of competent jurisdiction or by the Complainant's and Defendant's insurance carriers.

While the Commission, Administrative Law Judges and Staff frequently cite a list of Commission Orders explaining that the Commission is without jurisdiction to award monetary -damages, West Virginia Code §24-4-7 and the West Virginia Supreme Court of Appeals both require that damages be awarded by a court of competent jurisdiction and not the Public Service Commission. (See, Wheeling Steel Corp. v. Public Service Commission, 9 0 W.Va. 74, 110 S.E. 489 (1922); Carter v. Willis, 145 W.Va. 779, 117 S.E.2d 594 (1960)). The type of "restoration" recommended by Staff in this case is more akin to damages than restoration. There is no practical or functional difference between awarding $5,000 to the Complainants or ordering the Defendant to restore to the Complainants $5,000 worth of materials.

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The practical problems generated by the Staff “restoration” proposal cannot be overlooked. The Staff proposal would require the Complainant to prepare a full inventory of allegedly lost or damaged items, from carpeting and dry wall to combs and hairbrushes, along with the estimated age of the lost or damaged material. The City would then have the right to fully challenge or review that inventory. If the Commission has the authority to award such restoration, it must have, as well, the authority to resolve all disputes between the City and the Complainant regarding the value, age and even the existence of material on the Complainant’s list. Currently, the Public Service Commission does not have the expertise to make such determinations. Circuit Courts and insurance companies, on the other hand, deal with these matters routinely.

The Administrative Law Judge believes that the Defendant has a duty to assist the Complainant in the clean-up procedures and removal of the sewer water and sludge from the property and should have provided those services. Since the testimony reveals that the Complainants have already performed many of the tasks, the Defendant should be required to assist in any further clean-up.

The Administrative Law Judge wishes to take this opportunity to remind the Defendant that, regardless of the present configuration of the Perry/Johnson service lines or outcome of this case, she expects the Defendant to treat the owner of this property in a like manner as the other five customers on the alley line; as the other customers on the 50th Street line and in the Kanawha City areas; and as the other customers in the area who have basements, particularly with respect to separating the storm drain and sewage systems.

FINDINGS OF FACT

1. On September 20, 1996, Scott A. Perry, Charleston, Kanawha County, filed a formal complaint, duly verified, against Charleston Sanitary Board, a municipal corporation, alleging improper maintenance of its sewer lines. The Complainant requested monetary relief for damage to his property and that the Defendant maintain its system to prevent the recurrence of future incidences. (See, complaint).

2 . The Perry/Johnson properties at 506 and 508 50th Street, Charleston, West Virginia, suffered sewage back-up on two separate occurrences between July 15, 1 9 9 6 and November 16, 1996. (Tr., pp. 7, 11, 13, 14, 15, 24, 25, 73, 74, 98, 99, 100, 102) .

3 . The Defendant made two service calls to inspect the sewer mains providing service to the service locations at 506 and 5 0 8 50th Street, Charleston, West Virginia. (Tr., pp. 98, 99 , 100 and 1 0 2 ) .

4. The Sanitary’s main line became partially or fully clogged, resulting in sewage back-ups at 506 and 5 0 8 50th Street on two occasions in 1 9 9 6 . (Tr., pp. 99, 100, 102, 110, 1 2 6 , 1 2 7 , 1 2 8 ) .

5. West Virginia Code § 2 4 - 4 - 7 provides that any person claiming to be damaged by any violation of Chapter 24 by any public utility may make

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15

6. The Public Service Commission does not have the authority to award damages. Wheeling Steel Corp v. Public Service Commission, 90 W.Va. 74, 110 S.E. 489 (1922); Carter v. Willis, 145 W.Va. 779, 117 S.E.2d 594 (1960). (See also Middleton v. Appalachian Power Company, 72 ARPSCWV 2787, Case No. 85-112-E-C, April 15, 1985; Lewis v. Mountaineer Gas Company, 72 WVFin 2112, Case No. 84-601-G-C, October 30, 1984; Burke Enterprises, Inc. v. Grafton Municipal Water Department, 73 ARPSCWV 1579, Case No. 85-229-W-C, November 7, 1985; Myers v. Monongahela Power Company, 71 ARPSCWV 1764, Case No. 83-164-E-C, April 16, 1984 aff’d 71 ARPSCWV 1723, June 4, 1984; Shafter v. Appalachian Power Company, 71 ARPSCWV 3145, Case No. 84-157-E-C, April 25, 1984).

7. Rule 5.1.1 of the Commission’s Rules and Regulations for the Government of Sewer Utilities provides that:

The collecting system of every sewerage utility shall be designed, constructed, maintained and operated so as to be able to receive and transport the sewage from its customers‘ outlets to its treatment plant without delay.

(See Sewer Rules).

8. Rule 5.1.4 of the Commission’s Rules and Regulations for the Government of Sewer Utilities provides that:

. . . Each utility shall at all times construct and maintain its entire plant and system in such condition that it will furnish safe, adequate and continuous service.

(See Sewer Rules).

9. The City is aware that it has problems with its sewage system and that it is not providing safe, adequate and continuous service at all times. (Tr., pp. 9-10, 115).

10. Sewage back-ups do not constitute safe, adequate and continuous service. (Tr., pp. 203, 228).

11. The Perrys contacted a plumber to determine if a build-up existed on the service lines of the service locations and were advised that the problem did not exist in the Perrys‘ service lines. (Tr., p. 24).

12. The back-up rescinded from the properties of both 506 and 508 50th Street on both occasions after the Defendant‘s velocity truck was engaged and the City’s lines were cleared. (Tr., pp. 75, 99, 100, 102).

13. Jack Hersman of the Charleston Sanitary Board testified that the workers did not investigate how the service lines from 506 and 508 50th Street feed into the Charleston Sanitary Board’s main line after the first incident and that his crew on ly performed the dye test on the catch basin

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located in the driveway of 506 50th Street about two weeks before the hearing. (Tr., pp. 100, 101).

14. As of the time of the hearing, Mr. James Downey, Operations Manager for the City of Charleston, testified that the City had not televised the lines in question in order to determine the location of the storm and/or sewer lines of the two service locations or determined the cause of the sewage back-up into the basement of the two properties. (Tr., pp. 144, 145, 148, 150, 166).

15. Mr. James Downey confirmed that the Sanitary Board has assisted some customers in the cleanup of their property after a sewerage back-up has occurred but that assisting customers is not the Sanitary Board's standard policy. (Tr., pp. 160-161).

16. The Operations Manager acknowledged that the Sanitary Board's service needs to be improved regarding basement flooding, but does not feel there is any type of routine maintenance on the 350 miles of pipe that can be done to help eliminate the problems. (Tr., pp. 162, 163).

CONCLUSIONS OF LAW

1. It is reasonable to require the Defendant to take whatever steps are necessary to provide the Complainant and the properties located at 506 and 508 50th Street with safe, adequate and continuous service pursuant to the Commission's Sewer Rules.

2. It is reasonable to require the Defendant to perform a video inspection on 50th Street and any lines connected to 506 and 508 5 0 t h Street and the manholes designated as Manhole No. 1 to Manhole No. 0 at the hearing and to investigate the cause of any back-up of its main line in the area.

3 . It is reasonable to require the Defendant to install and maintain a backflow preventer at the residence of 508 50th Street and/or at the 506 50th Street location, subsequent to the Complainant's confirmation that a backf low preventer is desired at one or both locations, or, in the alternative, install a pumping mechanism to an appropriate sewer line to prevent any back-up from accumulating in the basement(s) at those locations and to continue to monitor the sewer lines weekly to prevent a future back- up, until the Charleston Sanitary Board can demonstrate that it has taken appropriate action to eliminate the back-up problem that occurred at the two locations on two separate times within a six-month period.

ORDER

IT IS, THEREFORE, ORDERED that the Charleston Sanitary Board provide the service locations at 506 and 508 50th Street with safe, adequate and continuous service.

IT IS FURTHER ORDERED that the Sanitary Board perform a video inspection of any of its main lines, including the 50th Street and alley lines, which would affect the service locations at 506 and 508 50th Street

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and Manholes No. 1 and No. 0 as designated at the hearing within ten days of the day this order becomes a final order of the Commission.

IT IS FURTHER ORDERED that the Charleston Sanitary Board clean and wash the line located in the alley located next to the properties located at 506 and 508 50th Street within five (5) days of the required video inspection or within eleven days of the date that this order becomes a final order of the Commission, whichever is sooner.

IT IS FURTHER ORDERED that the Charleston Sanitary Board install and maintain backflow preventers or a pumping mechanism and lines to the service locations of 506 and 508 50th Street, at the Complainant’s option, until the Charleston Sanitary Board takes such actions as will eliminate the back-up problem that has occurred at those locations.

IT IS FURTHER ORDERED that the Complainant and Defendant meet within f ive (5) days of the date that this order becomes final in order for the Defendant to explain in detail to the Complainant all of the advantages and disadvantages of the installation of the backflow preventers at the two service locations.

IT IS FURTHER ORDERED that the Defendant file bi-monthly reports on its actions taken to prevent future back-ups at 506 and 508 50th Street, Charleston, West Virginia, until the problem has been eliminated.

The Executive Secretary is hereby ordered to serve a copy of this order upon the Commission by hand delivery, and upon all parties of record by 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 fifteen (15) days of the date this order is mailed. If exceptions are filed, 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 the expiration of the aforesaid fifteen (15) day time period, unless it is ordered stayed or postponed by the Commission.

Any party may request waiver of the right to file exceptions to an Administrative Law Judge’s order by filing an appropriate petition in writing with the Secretary. No such waiver will be effective until approved by order of the Commission, nor shall any such waiver operate to make any Administrative Law Judge’s Order or Decision the order of the Commission sooner than five (5) days after approval of such waiver by the Commission.

SAM:pst:mal

Susan A. Murensky Administrative Law Judge

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