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S I Y T E R I D PUBLIC SERVICE COMMISSION OF WEST VIRGINIA

II, CHARLESTON

Entered: December 15, 1995

CASE NO. 94-0624-PWD-C

A. NEIL HUMPHREYS, Rt. 8 , BOX 241-E, Fairmont, Marion County,

Complainant,

V.

LITTLE CREEK PUBLIC SERVICE DISTRICT, a public utility,

Defendant.

CASE NO. 95-0440-PWD-C

A. NEIL HUMPHREYS, Rt. 8 , BOX 241-E, Fairmont, Marion County,

Complainant,

V.

LITTLE CREEK PUBLIC SERVICE DISTRICT, a public utility,

Defendant.

RECOMMENDED DECISION

PROCEDURE

Case No. 94-0624-PWD-C

By the Recommended Decision in Case No. 94-0624-PWD-PC, which was issued February 15, 1995 and became final March 7, 1995, the undersigned ALJ dismissed the complaint.brought by A. Neil Humphreys (Mr. Humphreys or Complainant) against Little Creek Public Service District (District) because it had been resolved upon the parties agreeing that the District should provide the following action to correct a sediment problem in Mr. Humphreys' water supply: (1) Clean out the sediment buildup in the Shaffer tank by April 1, 1995; (2) Inspect the Shaffer tank at least once monthly for six months thereafter, to see if further sediment buildup

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occurs, and, if sediment continues to occur, promptly clean the tank, endeavor to determine the cause of the buildup, and correct the cause, if possible; and ( 3 ) Maintain a written record of the dates and time of such inspections, as well as the results thereof.

On May 25, 1995, Mr. Humphreys filed a request with the Public Service Commission to reopen the case, alleging that he still had sediment in his water and that he had seen no action by the District to provide him clean, potable water.

On June 2, 1995, the District, by counsel Frances C. Whiteman, filed its answer, which stated that the District had taken all steps as agreed and noted in the February 15, 1995 decision and that the District would take further action if it was shown that sediment was still in the water of the complainant, although it denied that there was "extraordinary sediment" in the water. The District affirmatively averred that any sediment could be eliminated by the placement of a water meter and pump at the beginning of the Complainant's driveway but that the Complainant had refused such placement. Attached to the answer was an April 20, 1995 letter from Ms. Whiteman to the Complainant stating that, because the Complainant was prohibiting the District from using his driveway in order to read his meter and service the Shaffer tank pump which serves his home, and because the District had allowed use of the present connection, although an improper one, due to the Complainant's agreement to let the District use his road, the District was requesting his approval for a new service connection at the beginning of the driveway. Also attached was a May 4, 1995 reply from the Complainant refusing to apply for another connection and stating that, if the District wanted to work on the pump, its agents should travel on the property of a Ms. Shaffer, on whose land it is located, rather than his property, for he had not wanted the pump pit so located. He also asked that he be allowed to read the meter for his residence and for the District's agents to check the reading once a year.

Case No. 95-0440-PWD-C

On May 25, 1995, Mr. Humphreys filed a complaint against the District stating that the District had notified him that it would shut off his water on May 31, 1995, for violating Water Rule 4.11,' and alleging that he had not violated that rule and that, instead, the District was shutting off his water because of his prior complaint, in Case No. 94-0624-Pm-PC.

'Water Rule- 4 i.11 provides in pertinent

The utility shall at all reasonable times have access to meters, service connections and other property owned by it on customer's premises, for the purpose of maintenance and operation. Neglect or refusal on the part of customers to provide reasonable access to their premises for the above purposes shall be deemed to be sufficient cause for discontinuance of service on the part of the utility.

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On June 2, 1995, the District, by Ms. Whiteman, filed its answer, agreeing that it had notified the Complainant that it was taking steps pursuant to Water Rule 4.11 to terminate his water service due to his failure to allow the District's meter readers access to the water meter and his failure to abide by an oral agreement that the District could use the Complainant's driveway, not only to read the meter, but also to service the Shaffer tank and the water pump which serves the Complainant's home in return for furnishing water by installing the water pump. Attached to the answer were several documents, including an April 7 , 1995 letter from Mr. Humphreys to the District denying that his agreeing to allow the District to use his road had been in exchange for receiving water service, and stating that, instead, he had agreed, six months after his service was installed, to allow the District to use the road, but only until the septic system was installed and the landscaping complete and only if no damage occurred. The letter related that damage had resulted twice and, with the last occurrence, he had told an agent of the District to stop using the road and resume using the road the District had built across the Shaffer property. The letter further stated that he had no objection to the meter readers using the road to read the meter but requested that he be allowed to read the meter himself. The letter also stated that the only way he would agree to a new tap would be if his original tap fee were refunded.

On June 6, 1995, Staff Attorney Cassius Toon filed an Initial Joint Staff Memorandum, with an attached memorandum from Robert L. Skiles, Jr., Utility Engineer, Public Service District Division of the Commission. Mr. Skiles' memorandum recommended that Case No. 95-0440-PWD-C be consolidated with Case No. 94-0624-PWD-C (reopened) , that the District be ordered to cease and desist from terminating Mr. Humphreys' water service, and that Mr. Humphreys pay all bills for water service as they are due during the resolution of this matter. Mr. Skiles stated that a field investigation of the water quality aspects. of this complaint would be scheduled in the near future and Technical Staff would submit a final recommendation after completion of the investigation.

Case Nos. 94-0624-PWD-C and 95-0440-PWD-C.

On July 10, 1995, by Order, the Commission consolidated the two cases and also ordered that the District not disconnect Mr. Humphreys' water service during the pendency of the proceeding, so long as Mr. Humphreys kept his water payment current, unless a further order of the Commission granted permission to the District to terminate said service. The Commis- sion, noting a demand by Mr. Humphreys that orders of the Commission not be sent to him by certified mail but, rather, that orders be sent by first class mail, also ruled that the request was at odds with Rule 7.3 of the Commission's 'Rules 'of"Pract1ce 'and 'Procedure, but left- the issue for decision by the Administrative Law Judge. Finally, the Commission re- ferred the consolidated cases to the Division of Administrative Law Judges for decision on or before December 21, 1995.

On July 28, 1995, the undersigned ALJ issued a Procedural Order scheduling this matter for hearing at 11:OO a.m. on September 12, 1995, in Room 104, City-County Complex, 200 Jackson Street, Fainnont, West Virginia. The order included the following discussion:

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Review of the pleadings reveals that, while Mr. Humphreys requests of the District that he be allowed to read his own meter, with only a yearly check by the District, he recognizes that he has no right to read his own meter. Moreover, the pleadings reveal that Mr. Humphreys is not denying access to the readers of the District in order to read his meter, and certainly Water Rule 4.11 requires such access. Accordingly, it may be clarified that the District may continue to use Mr. Humphreys' road to read the meter and, consistent with the July 10, 1995 Order of the Commission, the District may bill Mr. Humphreys accordingly and Mr. Humphreys must pay his water bills when due.

The order also rejected Complainant's request that all mailings to him from the Commission be sent by first class mailing, finding no valid basis for not following Procedural Rule 7.3.

Hearing was held as scheduled. The Complainant appeared pro se; Ms. Whiteman appeared on behalf of the District; and Staff Attorney Susan J. Riggs appeared on behalf of Commission Staff. The Complainant testified, as did Wayne Badger and Harry Swisher for the District, and Mr. Skiles and Jeffrey Bennett for Commission Staff. Two documents were entered into evidence.

The transcript was filed on October 11, 1995, and, because the filing was belated, a Procedural Order was issued October 12, 1995, modifying a briefing schedule that had been established at hearing so as to require the simultaneous filing of initial briefs no later than October 27, 1995, and of any reply briefs no later than November 6 , 1995.

Mr. Humphreys and Ms. Whiteman filed initial briefs, respectively, on October 25 and 27, 1995, and Mr. Humphreys filed a response on November 3, 1995 .' Staff Attorney Cassius H. Toon filed a reply brief on December 1, 1995.

EVIDENCE

Mr. Humphreys testified that, in 1985, the District had a moratoriun on new taps, but Warren Badger, then the District's engineer, had eventually agreed for the District to provide him water service. (Tr. 10- 11 ) , The Shaf fer tank, which supplies him water, is located on the property of his neighbor, Lisa Shaf fer, about eight to ten feet from his property line. (Tr. 13). Warren Badger wanted to put the pump pit also on the Shaf f er --proper-ty- because-the- pl.an.. at. -that--ti.me -.was to -add three tanks in the area of the Shaffer tank. (Tr. 14, 2 7 ) . Mr. Humphreys did not want the pump on another's property, but Mr. Badger assured him that the

2 The submission was not a brief but, rather, provided additional information and documents, which could not be considered by the undersigned ALJ because they were not evidence presented at hearing.

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District had a right-of-way there. (Tr. 14, 27). The two agreed on the location for the meter, which is 80 or 90 feet inside Mr. Humphreys' property line. (Tr. 15). Mr. Humphreys denied that he had traded use of his road for a water tap; rather, he testified that he had paid $1600 for what he had received, and the agreement was that Mr. Humphreys would provide the excavation and the District would provide everything else, including installing the pump and the meter. (Tr. 10, 15-16). Also, the District supplied a pressure tank, which is in Mr. Humphreys' garage. (Tr. 16). Mr. Humphreys helped the District with much of the work, and Warren Badger installed a switch on the top of the pump so that Mr. Humphreys could bleed the line himself, which he has done weekly. In fact, for approximately four years, he maintained the hill around the tank and the tank itself. (Tr. 17-19). While the District had constructed a road across the Shaffer property, the District let it deteriorate when it started using Mr. Humphreys' driveway, so that it is presently so choked with vegetation that a bulldozer would be needed to open it. (Tr. 26).

Mr. Humphreys further testified that, in the summer of 1986, Warren Badger told him that the District had trouble with the road over the neighbor's property to the water tank. Mr. Humphreys gave permission to use his driveway instead, but told Warren Badger that, after the backyard was landscaped after installation of a septic tank, he would not want any further driving over the area. (Tr. 21). The septic tank was installed in 1992 and the yard backfilled and, thereafter, during the winter, Wayne Badger and another individual drove a truck over the yard, rutting it. (Tr. 21). Mr. Humphreys had to repair the yard himself. (Tr. 21). In the Fall of 1994, A.J. Starr, an employee of the District, told Mr. Humphreys that the top of the water tank needed repair, requiring the mixing of concrete and the wheeling of it over to the tank, and Mr. Humphreys agreed, as long as no one drove over the yard. (Tr. 23) . The concrete truck did a lot of damage, tearing up a concrete ditch and several berms, and, when the employees washed out the truck, they partially plugged a culvert so that water flowed over Mr. Humphreys' driveway. (Tr. 23). Mr. Humphreys had to clean out the sludge, chip out the concrete, and repair the road. (Tr. 23). Wayne Badger only offered an apology, and Mr. Humphreys told Wayne Badger not to come onto his property if he was going to damage it and, if the District wanted to work on the pump or the water tank, to use the road over the Shaffer property. Thereafter, counsel for the District, Ms. Whiteman, notified him that the District would terminate his service. (Tr. 24-26).

Mr. Humphreys testified that the District had offered, as a way of getting rid of the sediment problem, to provide a new connection at the bottom of his driveway, but he relies on a right-of-way to get to his property and he could not see any reason to terminate service he had paid $1600 for, - pay- another -. tap--fee , --and --have. .-his- --dr.iveway - .torn up. ( Tr. 2 7 ) . He further testified that Mr. Swisher and Wayne Badger had tried to purchase his tap for $1600. Referring to correspondence that had been entered into evidence at the prior hearing in Case No. 94-0624-PWD-C, Mr. Humphreys stated that it supported that the District wants to get rid of the Bennett pump, which keeps pressure in the Shaffer tank. (Tr. 28). He explained that the Bennett pump also pumps to the Carroll tank, which is lower than the Shaffer tank, and, when the Carroll tank is low in water, it drains the Shaffer tank, causing loss of water to Mr. Humphreys

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residence. (Tr. 29). Mr. Humphreys stated that, if the District removed him from its system, it could do whatever it wished with the system. (Tr. 29). Referring to a document (entered into evidence as Staff Exhibit l), "Application for Water Service from Little Creek Public Service District," for Neil Humphreys, dated June 14, 1995, and, upon discussion regarding whether it had any provision regarding right-of-way across the Complainant's property, Ms. Whiteman conceded that the District has no right-of-way to cross the Complainant's property to maintain the pump and the tank. (Tr. 32). Asked what relief he was requesting, the Complainant stated that he wanted the District to use the road across Shaffer property to maintain the pump, and he wanted clean water. (Tr. 38, 51).

Regarding the sediment problem, he stated that the quality of the water has improved since the prior complaint. (Tr. 41). There remains a problem, however, when there is an outage, causing the tank to go dry. (Tr. 41).

On cross-examination, Mr. Humphreys agreed that the other tanks were never installed on the Shaffer tank site. (Tr. 42). He agreed that Warren Badger wanted placement of the pump on the Shaffer property due to elevation and pressure from the Shaffer tank, and the Complainant stated that Mr. Badger also did not want any interference with the other tanks. (Tr. 44). The Complainant conceded that he did approve placement of the pump on the Shaffer property, and stated that, after it was installed, the District sometimes accessed it for service through the Shaffer property and sometimes through his. (Tr. 44). He repeated that the road across the Shaffer property is now all grown up, and stated that there is a steep, wooded embankment up to the Shaffer tank from the road on the Shaffer property. (Tr. 47).

Mr. Humphreys stated that he had been told from the beginning he would need a pump. The agreement suggested by Warren Badger was that, since Mr. Humphreys had a bulldozer on the property, if Mr. Humphreys would use it to excavate the line, Warren Badger would install the pump. (Tr. 54). Also, Mr. Humphreys was to supply the electricity for the pump, since there was no electricity to the Shaf fer tank. (Tr. 54). He clarified that he excavated the entire line, which was both on his own property and extended 100 feet onto the Shaffer property. (Tr. 54). Regarding Mr. Humphreys' hesitance to have the pump on Shaffer property, Warren Badger advised him to tell Ms. Shaffer, if there were any problem, that the District had a right-of-way. (Tr. 55).

Regarding the cost of his service, Mr. Humphreys reiterated that he paid $1600, although at the time the tap fee for the District was only $100 or $150, and he also paid the $700 cost of the bulldozer. (Tr. 56). He ,emphasized. that- the-.. on-ly-aont-rac-t -he. .ev-er.-signed .was. .the application. (Tr. 57). Mr. Humphreys stated his view that an association was formed to get around the legalities, and about 70 or 80 people paid $1600 each for extending service on Halleck Road. (Tr. 58). He stated that the District paid for the water line, including the line across his property, and also supplied the equipment in his house, which was a storage tank, black pipe plumbing, and a sensor switch. (Tr. 58-59). Mr. Humphreys stated that Warren Badger originally agreed to do all the work, but, when he realized that excavating in the back of the Complainant's house would be through

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rock, he devised the agreement that he would maintain the pump if Mr. Humphreys would pay for the excavation and backfilling. (Tr. 6 0 ) . The Complainant stated that his only responsibility was to pay the electricity for the pump, although, in fact, he has maintained the pump. (Tr. 6 0 ) . Regarding the association formed for the water extension, he stated that it ran out after six years but, during those years, he paid the water bills to the District. (Tr. 7 2 ) .

Wayne Badger stated he is the Manager of the District. (Tr. 7 2 ) . He testified that never, to his knowledge, was it proposed that more tanks would be installed at the Shaffer tank and, in fact, they were installed at the Carroll location. (Tr. 7 3 ) . He was employed by the District in 1 9 8 5 and was with his father, Warren Badger, when placement of the pump was discussed, and the reason it was placed on the Shaffer property was in order that it would be at a point lower than the tank, so that it would not run out of water. (Tr. 7 4 - 7 5 ) . He opined that putting the pump there was the most feasible option, because, in order to put it on Mr. Humphreys' property, the water line would have had to go up the hill at an angle, requiring more excavation. (Tr. 7 5 - 7 6 ) . His testimony continued:

I had inquired of my dad, what -- since he is the one that actually put it in, and talked to Mr. Humphrey, I had asked him what he had done. And he put the pump in there with -- and none of the results are going to let it get pumped in there, that -- if we installed the pump, then we could use that, you know, his road went right parallel to the tank, we had no road to the tank. That if we installed the pump, we would then be able to use the road to occasionally visit the tank, plus maintain that pump ....

And with the advent of the pump, we were then able to drive up there to do the same thing and also maintain the pump. Now, had he not given us permission, it would be personally impossible to go walking up this hill, because we never had a road.

(Tr. 7 6 - 7 7 ) . While most maintenance of the tank can be accomplished with hand tools, which can be carried up the embankment from the road on the Shaffer property, it would be impossible to carry pumps and tools needed for pump maintenance up the embankment. (Tr. 7 7 , 8 5 ) . Emphasizing that the District could have provided a connection "at the bottom of the hill like a normal service, ... [I]t was aiding us in being able to go up to the tank and he figured that was a reasonable thing to do in trade for a way to get to the tank[. 1'' (Tr. 7 8 ) . Mr. Badger stated that the incline of the hill to the tank was too steep for a road. (Tr. 7 8 ) . The District has no right-of-way- .for- -.a road...-ac.ross -.-the.-.Shaf-f.er.-.-property. ..(Tr. 78-79) . The pump is approximately 5 0 feet from the Complainant's property line, and the Complainant's house is about 300 to 350 feet from his property line. (Tr. 7 9 ) . Mr. Badger stated that Mr. Humphreys did all the excavating because he had the machinery on the site. (Tr. 8 0 ) . He stated that the District provided the pipe and equipment in exchange for the excavating. (Tr. 8 0 ) . He clarified that the meter will not work without the pump, for the pump is needed to get water to the meter, and the meter is located within the Complainant's property. (Tr. 82-83 ) . Mr. Badger stated that no

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other customer has service from the immediate vicinity of the Shaffer tank, and indicated that no customer other than Mr. Humphreys is dependent upon the Shaffer tank, which is about 15 feet higher in elevation than the Carroll Tank, for only his house requires a source at the elevation of the Shaffer tank. (Tr. 86). The Shaffer tank does give added capacity for the area customers. (Tr. 87).

Regarding the $1600 fee, Mr. Badger stated that four associations were formed when the water system was built in the area in. order to get water, and the Public Service Commission approved the fee. (Tr. 87-88). He stated that the District paid two-thirds the cost of the extension; after six years the associations dissolved; and the extension was turned over to the District. (Tr. 88). He denied that there has been any discussion of eliminating the Bennett pump or the Carroll tank, and denied that either could be eliminated. (Tr. 89-90).

Asked what corrective measures were taken pursuant to the order of the Commission, Mr. Badger stated that the tank was drained and cleaned and a block installed to keep the water from shooting across the tank. (Tr. 90). He knew of nothing else that could be done, although he indicated that, when sediment formed in the tank, because of his property's location, Mr. Humphreys' water would contain more than others'. Were the pump and the meter moved to the end of his driveway, he would receive no more than anybody else. The other customers are not having a sediment problem. (Tr. 91). Mr. Badger recommended such movement, for then the District's employees would not need to come onto Mr. Humphreys ' property and Mr. Humphreys would have service from a line that does not have a sediment problem. (Tr. 92).

On cross-examination Mr. Badger denied that there had ever been a real road on the Shaffer property, stating that, when the tank was installed, bulldozers went before and after the truck carrying the tank and the tank was hoisted into place by bulldozer. (Tr. 96). He stated that the hill was so steep one would not be able to maintain a surface on a road and that, when the District employees cleaned the tank, they walked up the hill, carrying mops and other supplies. (Tr. 96, 99). He stated that the District has the right to maintain the pump and, since the pump's controls are at Mr. Humphreys' house, the District cannot maintain the pump unless it has access to his property. (Tr. 99). He stated that, even if the Complainant's service tap were moved, the District would still need the Bennett pump, for it is used to serve other customers. (Tr. 104, 109- 110). Mr. Badger stated that the pump that serves the Complainant is needed to provide him adequate pressure and, if Mr. Humphreys' service were relocated to the end of the driveway, there would be adequate pressure at the meter, but Mr. Humphreys would still need a pump at his house. (Tr. -113) . . . Mr. .-BadgeG.,.did. not-believe ... that-placing .the pump on the Shaffer property had been proper and he did not believe that any low pressure waiver had been obtained when the meter was placed on the Complainant's property, for the plan was to use a pump. (Tr. 115).

Mr. Swisher is Chairman of the District. (Tr. 119). He stated that the Bennett pump is an important part of the District's system and it is needed to supply the area with water. (Tr. 1 2 0 ) . The best alternative is to put the Complainant's meter at the end of his driveway, for such

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placement would be proper and there would be a legitimate reason for the electricity to the pump to be controlled by the Complainant. (Tr. 120). The District would be willing to pay for the pump at the bottom of the driveway, and the pipe to the Complainant's home, and would pay for a reasonable amount of the excavation costs. (Tr. 121). The tap fee could be waived. (Tr. 121). He agreed that he had offered to pay back the $1600 fee and, thereupon, to discontinue service. (Tr. 123). He estimated that the distance between the house and the road where the meter would be located is approximately 1000 feet. (Tr. 124). Mr. Swisher opined that a second pump would have to be somewhere between the meter and Mr. Humphreys' home, and the exact location would have to be determined by the amount of water pressure. (Tr. 127). He stated that, after installation, maintenance of the pump near the property line would be Mr. Humphreys' responsibility. Mr. Swisher stated that the Complainant owns the property at the end of the driveway, although his driveway goes through the property of his neighbor Huffman. (Tr. 132).

Mr. Humphreys was allowed to testify at this point, and he stated that his property line is not where the driveway appears to start on the map that was entered into evidence as Complainant's Exhibit 1, which is at the intersection with Route 79/2; rather, his property line is 580 feet from that point, and Mr. Humphreys marked on the map the point on the drive where his property begins. (Tr. 132). Upon receiving this information, Mr. Swisher stated that the District would be happy to place the meter at that point or anywhere it would have access. (Tr. 135).

Mr. Bennett testified he was a Utility Inspector for the Commission, and that he had inspected the area at issue in this matter in January and September of 1995. (Tr. 139, 140). He testified that, if the Complainant's meter were relocated to a point nearest the highway 79/2, it would be necessary to run a long service line across the Huffman property. (Tr. 142). If the meter were relocated to the point further up the drive at the Complainant's property line, there would be no need to cross another's property, but Mr. Bennett was not certain if there would be adequate pressure needed for the meter since that point is higher than the main road. (Tr. 142). A main line extension would have to be constructed from the main road 580 feet to the property line. (Tr. 142). He explained that a long service line would be required for the site of intersection with 79/2 because, under the Commission's regulations, a customer service line cannot cross the property of another. (Tr. 143). Mr. Bennett believed that the pump could be located on the property line between the existing meter and its present location, and he believed the pump could be connected to the existing line. (Tr. 144). He explained that the closer the pump is to the elevation of the meter, the lower the suction pressure, but he believed that, as long as the pump is below the elevation of the base... of the tank,. it--wou&d--have- .wa.ter.- . (-Tr. .... -144 ).. .- Mr... .Bennett declared that he believed the pump could be relocated as he had described and the water supply for the pump would be adequate. (Tr. 144).

In September 1995, after the tank had been cleaned, Mr. Bennett found no sediment problem, but he did not sample Mr. Humphreys ' water. He had no reason to believe there is still a sediment problem. (Tr. 146). He stated that any sediment problem that might exist is due to high velocity from the water moving in the pipes and, other than keeping water outages

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to a minimum, he had no further suggestion. (Tr. 146). He stated that outages could be due to line breaks or a tank going empty and the pumps refilling the tank and that customers other than the Complainant would experience sediment under those conditions. (Tr. 146-147). Mr. Bennett did not believe the District's proposed moving of the pump would serve any purpose; he believed that, if the pump were to be Mr. Humphreys' responsibility, it would make better sense to relocate the pump and the meter at the property line near the tank since the problem has been servicing the pump. (Tr. 149). He stated that the meter would need to be relocated because, if the pump is to be the Complainant's responsibility, the pump would have to be downstream from the meter. (Tr. 151). Also, the meter is presently located at a higher elevation than the property line and the pump would function better at the lower elevation at the property line rather than where the meter currently is. (Tr. 151). He noted that, if the meter were moved, there would not be 20 psi of pressure at it, and the pump would be required. (Tr. 152). While noting that a pressure waiver might be available, he stated that in the 1980s the District would have been under no obligation to provide the Complainant water service had no waiver been signed, but, since it has provided service without such waiver, the District would be required to provide and maintain the pump if water pressure is inadequate. (Tr. 154, 159). Mr. Bennett also opined that, if the District has to move the meter, it is responsible for all costs, citing Water Rule 5.6, but it has the right to move the meter if it pays for all costs. (Tr. 159). Mr. Bennett stated that, by moving the meter to the bottom of the driveway, the District would be ridding itself of its obligation to continue to maintain the pump, but he also stated that both of the District's proposed locations would require disturbance of the Complainant's land. (Tr. 161). He also opined that the District's options were not good because there is already a water line to the Complainant's property. (Tr. 163). He did believe that problems could result from the fact that the electricity for the pump is from the Complainant's house. (Tr. 164).

Mr. Skiles, a registered professional engineer, opined that there had been some agreement for the District to put the pump on the District's side of the meter and, therefore, the District is responsible for maintenance of the pump. (Tr. 171). He further noted that a pressure switch in Mr. Humphreys ' basement is an integral part of the pump's operation and the District needs access to it to maintain the pump. (Tr. 171-172). He stated that Staff's solution is to put the meter at or near the property line with the pump on the customer's side of the meter and to give Mr. Humphrey the responsibility for maintenance of the pump, for then the District would only have to send someone to read the meter. (Tr. 173). He stated that the options proposed by the District would disturb the land too much. (Tr. 173). Mr. Skiles stated that District's location nearest 79/2 would . be contrary -to --the-,-,-~omm-i.sss-ion.!..s -rule -.that ... customer service lines cannot cross any property other than that supplied water. (Tr. 173- 174). He further stated that there was "no way of knowing" if relocating the meter to one of the locations proposed by the District would alleviate any sediment problem. (Tr. 175). The only other ways to eliminate the sediment problem would be to flush the main periodically, which would be difficult "because they are not allowed access to the service line near the Shaffer tank" or to install some sort of a water filter on the Complainant's service line. (Tr. 175). He conceded that the District can

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choose how it wishes to relocate the meter, provided it pay the costs, but also stated that a right-of-way agreement would be the Complainant’s choice. (Tr. 176). It would not be convenient to maintain the pump by climbing the hillside on the Shaffer property since a pump weighs approximately 25 to 30 pounds. (Tr. 177).

On cross-examination, Mr. Skiles opined that the District could put a filter on the Complainant ‘ s service line. The District would buy it and give it to him for him to install. (Tr. 180). Also, it was Mr. Skiles’ opinion that moving the pump onto the Complainant’s property would require a right-of-way from him, for anytime a service line is placed on property, a right-of-way is needed. (Tr. 180-181).

Mr. Humphreys was asked whether, if the District paid to have a new pump placed on his side of the meter, he would be willing to operate it and maintain it in the future, and he replied affirmatively, stating that he had offered that to the District twice. (Tr. 187).

DISCUSSION

Case No. 94-0624-PWD-C

In the original order in Case No. 94-0624-PWD-C, included in the relief ordered was that the District, after cleaning out the sediment buildup by April 1, 1995, “inspect the Shaffer tank at least once monthly for six (6) months thereafter, to see if further sediment buildup occurs and, if sediment continues to occur, to promptly clean the tank, to endeavor to determine the cause of the buildup and to correct the cause, if possible.” Mr. Humphreys’ contention that he continues to have sediment in his water during outages is undisputed. Therefore, it is clear that the sediment problem has not been fully abated. Accordingly, the requirements for sediment abatement ordered previously, including monthly inspections and follow-up action, will be extended for another six months after the date this decision becomes final. The District should also take reasonable steps to verify the level of sediment in Mr. Humphreys’ lines during such episodes. If the level of sediment continues to be excessive, additional measures should be taken to reduce sediment in his water supply to an acceptable level. In order to correct any sediment problem that the District may find, it may be necessary for the District to provide a filter, as Mr. Stiles testified.

Case No. 95-0440-PWD-C

In its brief the District argues that Mr. Humphreys violated Water Rule 4. ll--by. not -.allowing --%he .-Dist.r,ict.. to..-maintai-n -. an.d. ..service the water pump, stating, “Although the water pump is located on the Shaffer lands, the Complainant refused to allow the District access to electrical controls to properly check and service the pump.” That argument can be rejected because there was no evidence that Mr. Humphreys has denied the District access to the electrical controls located at his home or that he would do so if such access became necessary. Further, that argument is narrower than the position the District indicated in its answer and at the hearing, which was that it is a violation of Water Rule 4.11 for Mr.

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Humphreys not to allow the District's employees to cross his property ii order to maintain the water tank and the pump itself, and it is Commissio~ Staff ' s view that Water Rule 4.11 does not require Mr. Humphreys tc provide such access. The undersigned ALJ agrees with Staff's summar] argument that the regulation has no applicability to maintenance of th( pump and tank because they are not on Mr. Humphreys ' property. That is Staff argued that the language of Water Rule 4.11 is clear and unambiguou! and therefore not subject to interpretation. "The tank and pump ii question are not on the customer's premises, and the customer is no1 required to 'give' an easement to the utility for access to its property. It also might be noted that the pump, located on the utility's side of tht meter, would not be the type of equipment that would be covered by tht regulation, just as the water tank would not be covered. See also Watei Rules 5.6.7 and 5.6.10.3

Consistent with the District's answer, its brief makes the genera: contention that there was an "enforceable oral contract" between Mr Humphreys and the District that the District could use Mr. Humphreys driveway to maintain the pump in exchange for the District's installin! the pump. However, the brief does not, in fact, refer to any testimon] establishing that there was such an oral agreement and, rather, relie! simply on the evidence that Mr. Humphreys did for a time permit tht District to use his driveway for maintaining the pump.

As the District apparently recognizes in its brief, the preponderanct of the evidence supported that there was no oral agreement of an exchangt of providing service for access. It was clear at the hearing that such a1 oral agreement would have been between Mr. Humphreys and Warren Badger an( Mr. Humphreys adamantly and persuasively denied that he made any sucl agreement. The only evidence supporting the existence of such ai agreement was the vague testimony of Wayne Badger quoted on page 7 of thi! decision, and that testimony was, in any case, entitled to less weigh1 than Mr. Humphreys' because it was hearsay.

As for the District's argument made in its brief, it is frivolous Mr. Humphreys' allowing the District to use his driveway for a time doe! not constitute an oral agreement, and does not even indicate that allowinc such access was in exchange for service. Mr. Humphreys ' merely allowinc such access for a time did not mean that he was not entitled tc

3 Those rules provide as follows:

5.6.7. The corporation cock, curb cock, curb box, or coppersetter"-when.-i-ns-kal-led.-i.n. a-meter- box,---and-,the. -.uti-lity ' s service pipe from the distribution main to the curb cock or coppersetter will be furnished, installed and maintained by the utility and shall remain under its sole control and jurisdiction.

5.6.10. The customer's service pipe from the curb cock or coppersetter to the place of consumption shall be installed in a workmanlike manner and shall be furnished, installed and maintained by the customer at his own expense and risk.

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discontinue it at any time he wished because, as the District admitted, it had no right-of-way across Mr. Humphreys' property. 4

The District currently has no right to cross Mr. Humphreys' land to inspect and/or maintain the pump or the tank and has no right to discontinue Mr. Humphreys' service for refusing the District free access across his property to maintain the District tank and pump. If the District cannot truly maintain the pump and tank on the Shaffer property by any existing right-of-way, which is allegedly the case because of the topography, it may institute a proper action to secure a proper right-of- way across Mr. Hymphreys' property to maintain those facilities. If Mr. Humphreys continues to deny the District access across his property to maintain the pump and tank located on the Shaffer property, the District's continued use of his property for that purpose without a proper right-of- way would constitute a trespass. Proper action to secure a necessary right-of-way would include the institution of a condemnation proceeding. Termination of service until such a right-of-way is relinquished is not a proper vehicle under these circumstances.

The District may also elect to relocate the pump presently on the Shaffer property or relocate both that pump and Mr. Humphreys' meter. The record supports that the District, within its discretion, may choose the action Commission Staff recommended or it may relocate the meter at Mr. Humphreys' property line at or near his driveway. Clearly relocating the meter near highway 79./2 is not feasible, since it would require the customer service line to cross a third party's property. Finally, the District must pay all costs of any such relocation of the meter and pump, including any excavation costs, whichever option it chooses. See Water Rule 5.6.16, which provides,

The customer shall not be required to make changes in the customer's service pipe or meter location required on account of changes of grade, relocation or mains, and other causes not related to the customer. Said changes shall be accomplished by the utility and said utility shall bear the full costs related thereto.

FINDINGS OF FACT

1. In Case No. 94-0624-PWD-C, a complaint case brought by A. Neil Humphreys (Complainant or Mr. Humphreys) against Little Creek Public Service District (District), the undersigned ALJ, on February 15, 1995, issued. a.. Recommended. .-Decision.- requir-ing-..th,e,- .fol.lowing...action to correct a sediment problem in Mr. Humphreys' water supply: (1) Clean out the sediment buildup in the Shaffer tank by April 1, 1995; (2) Inspect the

4 Whether the undersigned ALJ would have authority to enforce any oral agreement is doubtful. However, such a jurisdictional issue need not be addressed here because no such agreement was established.

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Shaf fer tank at least once monthly for six months thereafter, to see if further sediment buildup occurs, and, if sediment continues to occur, promptly clean the tank, endeavor to determine the cause of the buildup, and correct the cause, if possible; and (3) Maintain a written record of the dates and times of such inspections, as well as the results thereof. The decision became a final order of the Commission on March 7, 1995. (See decision).

2. On May 25, 1995, Mr. Humphreys filed a request with the Commission to reopen Case No. 94-0624-PWD-C, alleging that he still had a sediment problem. (See request).

3 . The District stated that it had taken all steps required by the February 15, 1995 Recommended Decision and that it would take further action if it was shown that sediment was still in the water of the Complainant, although it denied that there was "extraordinary sediment" ir: the water. (See answer filed June 2, 1995).

4. On May 25, 1995, Mr. Humphreys filed a complaint against the District alleging that the District had notified him that it would shut off his water for violating Water Rule 4.11 and asserting that he had not violated said rule. (See Complaint filed May 25, 1995, docketed as Case No. 94-0440-PWD-C).

5. The District's position was that it was entitled to discontinue Mr. Humphreys' water service because he was not allowing the District's employees to use his driveway in order to service the Shaffer tank and a pump located on the property adjacent to Mr. Humphreys' property. The District maintained that his denying the District such access was contrary to Water Rule 4.11. The District also alleged that there was an oral agreement between Mr. Humphreys and the District which allowed such access in exchange for the District's installing of the pump. (See Answer filed June 2, 1995).

6. The Shaffer tank, which supplies the Complainant water, is or the property of Complainant's neighbor, Lisa Shaf fer, about 8 to 10 feet from the Complainant's property line. The pump pit is located near the tank, also on the Shaffer property, about 50 feet from the property line. The Complainant's meter is 80 or 90 feet inside the Complainant's property line. The electrical controls for the pump, which only serves the Complainant, are at his house. (See Tr. 13, 14, 15, 27, 79).

7. No customer of the District other than Mr. Humphreys receives water immediately from the Shaf fer tank, which is at a higher elevatior than the District's other tank serving the area, the Carroll tank. Wher sediment -..forms in t.he --Shaf feG..-tank,- the---Complai-nant -.receives .more sediment in his water than others in the area. (See Tr. 86, 90-91).

8. The District did clean the Shaffer tank and install a block tc keep the water from shooting across the tank. The sediment problem of the Complainant has improved, but it has not been fully corrected because, when there is an outage causing the tank to go dry, there is still sediment in his water. (See Tr. 41, 90, 146).

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9 . The District has no right-of-way across the Complainant's property. (See. Tr. 3 2 ) .

1 0 . Any oral agreement made by Mr. Humphreys at the time that he received water service, in approximately 1985, would have been with Warren Badger, then the Engineer for the District. (See Tr. 14-15, 74-77) .

11. Warren Badger decided on where to place the pump. (See Tr. 14, 27, 44, 74-77) .

1 2 . Mr. Humphreys did not orally agree to allow the District access to the pump and tank by crossing his property in exchange for service or installation of the pump. Rather, Mr. Humphreys paid $1600 for service, for which he was supplied a pump, meter, and all piping, along with appurtenances and the equipment's installation. Mr. Humphreys excavated the lines, paying the $700 rent on the bulldozer. (See Tr. 10, 15-16, 54 , 56-60, 80; Staff Exhibit 1 ) .

1 3 . While Mr. Humphreys for several years did allow the District's employees to cross his land to access the pump and tank, he withdrew that allowance in 1 9 9 4 or 1995 . (See May 5, 1995 letter from Complainant attached to answer; Tr. 15, 21-26 , 44) .

1 4 . The District constructed a road across the Shaffer property that leads to the tank and pump, but it has become overgrown due to disuse. Also, the tank and pump are on top of an embankment beside said road that is so steep that no road could be built up it. Therefore, the tank and pump can be reached from the road on the Shaffer property only by foot and it would be infeasible to bring heavy equipment up the embankment to maintain the pump. (See Tr. 26, 47, 77-78, 85, 96, 99, 177).

1 5 . The District is willing to install a new connection for Mr. Humphreys' service at the bottom of his driveway at Highway 79/2, but placing a connection there would require Mr. Humphreys' service line to cross the property of a neighbor, A. Huffman. (See Tr. 27 , 120 , 132 ) .

1 6 . The District, alternatively, is willing to install a new connection farther up Mr. Humphreys' driveway at his property line. The District is also willing to provide a pump. (See Tr. 121 , 134 -135) .

1 7 . In order to relocate the connection, etc., described in Finding of Fact 16 , the District is willing to waive a tap fee and to pay for all equipment, including meter, pump, and piping, and willing to pay a reasonable amount of the excavation costs. (See Tr. 1 2 1 - 1 2 3 ) .

1 8 . - The-.only. -.s.u.ggesli-on.-. -Commi.ss.ion--Staf-f -.provided for alleviating the Complainant's sediment problem with his present system would be to install a water filter on the Complainant's service line. The District would buy it and give it to the Complainant to install. (See Tr. 146-147, 175 , 180).

1 9 . Commission Staff recommended relocating the pump and the Complainant's meter to his property line near the tank, with the pump on the customer side of the meter, so that Mr. Humphreys would have the

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responsibility of maintaining the pump, and the Complainant agreed to this suggestion. (See Tr. 149-151, 173, 187).

20 . Commission Staff opined that, if the District moves the Complainant's meter and other equipment, the District, pursuant to Water Rule 5.6, would be responsible for all costs, and it has the right to move the meter if it pays all costs. (See Tr. 159, 176).

CONCLUSIONS OF LAW

1. It is appropriate to order the District to continue, for six months after this decision becomes a final order, the abatement measures that are stated in Finding of Fact 1, and to further order the District to take reasonable steps to verify the level of sediment in Mr. Humphreys' lines during outages and, if the level of sediment is excessive, to take additional measures, such as providing Mr. Humphreys a line filter, to reduce the sediment in Mr. Humphreys' water supply to an acceptable level.

2 . The Complainant did not violate Water Rule 4.11 in not allowing the District's employees to cross his land in order to service the Shaffer tank and the pump because the tank and pump are not located on his property and are not the type of equipment covered by Water Rule 4.11.

3 . The District, in its discretion, may institute appropriate action to gain a right-of-way across Mr. Humphreys ' property to gain access to the pump and tank.

4. The District, in its discretion, may move the Complainant's connection to the location described in Finding of Fact 16 or to the location described in Finding of Fact 19. However, if it opts to move the connection to either location, the District will be required by Water Rule 5.6.16 to pay all costs, including all costs of excavation.

ORDER

IT IS, THEREFORE ORDERED that the Little Creek Public Service District act as follows: (1) Inspect the Shaffer tank at least once monthly for six months after this decision becomes a final order, to determine if sediment buildup occurs, and, if sediment continues to occur, promptly clean the tank, endeavor to determine the cause of the buildup, and correct the cause, if possible; and ( 2 ) Maintain a written record of the date and times of such inspections, as well as the results thereof.

IT IS FURTHER ORDERED that the Little Creek Public Service District take reasonable .-steps --to ..ver-if-y .the -1eve.l. of --sediment in Mr. Humphreys ' lines during outages and, if the level of sediment is excessive at such times, that the Little Creek Public Service District take additional measures, such as providing Mr. Humphreys ' a line filter, to reduce the sediment in Mr. Humphreys' water supply to an acceptable level.

IT IS FURTHER ORDERED that the Little Creek Public Service District, in its discretion, may institute appropriate action to gain a right-of-way across Mr. Humphreys' property to gain access to the pump and tank.

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IT IS FURTHER ORDERED that the Little Creek Public Service District may move the Complainant's connection to the location described in Finding of Fact 16 or to the location described in Finding of Fact 19, and, if it opts to move the connection to either location, the Little Creek Public Service District shall pay all costs, including all costs of excavation, to relocate the pump at issue in this matter and to establish a new connection for A. Neil Humphreys' water service at either location.

IT IS FURTHER ORDERED that this matter be removed from the Commis- sion's docket of open cases.

IT IS FURTHER ORDERED that the Executive Secretary 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.

SA: s

Sunya Anderson Administrative Law Judge

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