In Re: A.M.

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Jacquelyn Milliron,
Petitioner FILED
June 9, 2017
vs) No. 17-0384 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
The Public Service Commission of West Virginia,
and the Jefferson County Public Service District,
Respondents

MEMORANDUM DECISION
Petitioner Jacquelyn Milliron, appearing pro se, appeals the order of the West Virginia
Public Service Commission (“the Commission”) that granted the Jefferson County Public
Service District’s (“the PSD’s”) application for a certificate of convenience and necessity to
upgrade its facilities (“the project”), and approved a post-project rate increase to cover the
estimated costs. The PSD appears by counsel Robert R. Rodecker and Laura A. Hoffman. The
Public Service Commission of West Virginia (“the Commission”), by counsel Richard E. Hitt
and Robert M. Adkins, has filed its requisite Statement of Reasons for the Entry of its Order.1

This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the order of the Public Service Commission is
appropriate under Rule 21 of the Rules of Appellate Procedure.

On May 12, 2016, the PSD filed an application with the Commission for a certificate of
convenience and necessity to complete the project through the upgrade of its wastewater
collection and transmission system and the replacement of certain facilities that are
approximately thirty years old. The application included a request for approval of a related inter-
utility agreement and a request to implement a post-project rate increase. During the
Commission’s public comment period, more than 35 objections were filed. After receiving
evidence, the Commission approved the PSD’s application, concluding that the PSD met its
burden of proof and demonstrated that the project is needed and the resulting facilities would
serve the general public convenience. Ms. Milliron, one of three intervenors before the

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Petitioner has filed a motion to supplement the record with a memorandum that she
forwarded, post-hearing, to the Commission, and minutes from a meeting of the Jefferson
County Commission which was conducted after entry of the Commission’s final order.
Petitioner’s motion is denied.
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Commission, appeals the Commission order.2 Ms. Milliron argues that the Commission’s
findings of fact were arbitrary and that the PSD project is “not needed at this time.”3

We review Ms. Milliron’s assignments of error according to the following standard:

“‘In reviewing a Public Service Commission order, we will first determine
whether the Commission’s order, viewed in light of the relevant facts and of the
Commission’s broad regulatory duties, abused or exceeded its authority. We will
examine the manner in which the Commission has employed the methods of
regulation which it has itself selected, and must decide whether each of the
order’s essential elements is supported by substantial evidence. Finally, we will
determine whether the order may reasonably be expected to maintain financial
integrity, attract necessary capital, and fairly compensate investors for the risks
they have assumed, and yet provide appropriate protection to the relevant public
interests, both existing and foreseeable. The [C]ourt’s responsibility is not to
supplant the Commission’s balance of these interests with one more nearly to its
liking, but instead to assure itself that the Commission has given reasoned
consideration to each of the pertinent factors.’ Syl. pt. 2, Monongahela Power Co.
v. Public Service Comm’n, 166 W.Va. 423, 276 S.E.2d 179 (1981).” Syllabus
point 1, Berkeley County Public Service Sewer District v. West Virginia Public
Service Commission, 204 W.Va. 279, 512 S.E.2d 201 (1998).

Syl. Pt. 1, Jan-Care Ambulance Serv., Inc. v. Pub. Serv. Comm’n of W. Va, 206 W. Va. 183, 185,
522 S.E.2d 912, 914 (1999). To reiterate:

“The detailed standard for our review of an order of the Public Service
Commission contained in Syllabus Point 2 of Monongahela Power Co. v. Public
Service Commission, 166 W.Va. 423, 276 S.E.2d 179 (1981), may be summarized
as follows: (1) whether the Commission exceeded its statutory jurisdiction and
powers; (2) whether there is adequate evidence to support the Commission’s

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The remaining intervenors—the City of Charles Town and the City of Ranson—made
no appearance on appeal.
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Particularly, Ms. Milliron argues that the Commission incorrectly found that significant
risks of failure of the utility’s system would occur if the project was delayed; the project was not
designed to address future customer growth; isolated manhole overflow and sewer backup events
demonstrate the need for the project; certain pump stations are obsolete and appropriate for
decommissioning; gravity lines are not prone to septicity in comparison with old and aging pump
stations; the rebuilding of existing pump stations is cost-prohibitive and would require excessive
time for completion; the project sufficiently identifies ownership of infrastructure scheduled for
improvement; the project affects only areas where Charles Town and Ranson do not operate;
rates were reviewed for fairness; and the potential for consolidation of services with nearby cities
was not affected by project approval.

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 findings; and, (3) whether the substantive result of the Commission’s order is
proper.” Syllabus point 1, Central West Virginia Refuse, Inc. v. Public Service
Commission, 190 W.Va. 416, 438 S.E.2d 596 (1993).

Syl. Pt. 2, Jan-Care Ambulance Serv., Inc.

Upon consideration of these tenets applied to the facts before us, we find that the
Commission acted within its authority and rested its conclusions on adequate evidence, and the
substantive result is correct. Though Ms. Milliron supported her position with thoughtful and
articulate reasoning, her arguments are not sufficient to overcome the opinions of the various
professional engineers and managers whose testimony was received by the Commission. We
note that multiple witnesses testified that the PSD’s systems are burdened with reliability
problems, capacity issues, and aging and failing equipment. Certain pump stations within the
PSD’s system—those which would be decommissioned under the project—are outmoded and
often require the manufacture of parts when repairs are required. Ultimately, the Commission
concluded that “the service issues to be corrected by the [p]roject cannot be put off for an
extended period of time without bringing into play the real possibility of failures in the [PSD]
system.” There is no evidence to the contrary in the record before us.

The Commission adequately addressed each of the issues that Ms. Milliron raises on
appeal. For that reason, we hereby adopt and incorporate the Commission’s findings of fact and
conclusions of law, and direct the Clerk to attach a copy of the Commission order to this
memorandum decision.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: June 9, 2017

CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker

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