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Sexton v. Public Service Commission
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 1992 Term
No. 21147
JAMES K. SEXTON AND BARBARA SEXTON, Appellants
v.
PUBLIC SERVICE COMMISSION AND
SOUTHERN JACKSON COUNTY PUBLIC SERVICE DISTRICT,
A PUBLIC UTILITY,
Appellees

Appeal from the Public Service Commission Case No. 90-075-PSD-CN
AFFIRMED
Submitted: September 23, 1992 Filed: November 13, 1992 Robert A. Goldberg Raymond Keener, III King, Betts & Allen Charleston, West Virginia Attorneys for the Appellants
Robert R. Rodecker                                         Drexel M. Vealey McDonald & Rodecker                                    Legal Division Charleston, West Virginia                                 Public Service Commission Attorney for the Appellee                                 Charleston, West Virginia Southern Jackson County                                 Attorney for the Appellee Public Service District  Public Service Commission
JUSTICE MILLER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. "'"[A]n order of the public service commission based upon its finding of facts will not be disturbed unless such finding is contrary to the evidence, or is without evidence to support it, or is arbitrary, or results from a misapplication of legal principles." United Fuel Gas Company v. The Public Service Commission, 143 W. Va. 33 [99 S.E.2d 1 (1957)].' Syllabus Point 5, in part, Boggs v. Public Service Comm'n, 154 W. Va. 146, 174 S.E.2d 331 (1970)." Syllabus Point 1, Broadmoor/Timberline Apartments v. Public Service Commission, 180 W. Va. 387, 376 S.E.2d 593 (1988).
2. Although construction of a new facility proposed by a utility will often require the taking of private property through eminent domain, in the absence of express statutory language, the Public Service Commission has no duty to review and decide issues that are inherent in the eminent domain proceeding.
3.
Under W. Va. Code, 16-13A-25 (1986), a public service district must first obtain a certificate of public convenience and necessity before it can acquire or construct public service property.

4.
Where the Public Service Commission is authorized to issue a certificate of public convenience and necessity, in addition to any specific statutory guidelines, the Commission should consider the general public convenience to be served and the public necessity for it, having in mind the adequacy of any competing similar facilities.


Miller, Justice:
    James Sexton and Barbara Sexton, husband and wife, appeal a final order of the Public Service Commission of West Virginia (PSC), dated February 14, 1992. In this order, the PSC conditionally approved the application of the Southern Jackson County Public Service District (the District) for a certificate of public convenience and necessity to construct and operate a sewage treatment facility on property currently owned by the Sextons. On appeal, the Sextons assign three errors: (1) the location of the sewage lagoons violates regulations promulgated by the West Virginia Department of Health and Human Services (the Department) and constitutes a nuisance; (2) the PSC erred in finding the project economically feasible; and (3) the District failed to establish that public convenience and necessity exists. We find no error; accordingly, we affirm the final order of the PSC.
I. Facts
    On June 4, 1991, the District submitted an application to the PSC pursuant to W. Va. Code, 24-2-11 (1983),See footnote 1 and W. Va. Code, 16-13A-25 (1986),See footnote 2 for a certificate of public convenience and necessity to construct and operate a waste water treatment plant and collection system. The proposed waste water treatment facility would consist of two aerated sewage lagoons, a septic reception station, and a disinfection and post-aeration system, and would serve 194 customers in and around Fairplain, Jackson County. The sewage lagoons would be located on approximately six acres of the Sextons' 242-acre farm and would be approximately 430 feet from their home.
    On July 8, 1991, having learned of the proposed location of the lagoons, the Sextons filed a protest to the District's application and a motion to intervene. The PSC granted the Sextons intervenor status, and on October 10, and 11, 1991, an evidentiary hearing was conducted at which all parties were represented by counsel.
    Following the hearing, the administrative law judge (ALJ) issued a decision recommending that the District's application be denied. The ALJ based her recommendations upon the following conclusions:
            "1. The Applicant has failed to establish that public convenience and necessity exists with regard to the project as proposed. . . .
            "2. The plant site, as proposed, has not received final approval from the appropriate state agencies and, therefore, is not in the public's best interest.
            "3. The project is not economically feasible inasmuch as the property needed for the project has not been obtained and the final project costs cannot be determined."
    On January 17, 1992, the District filed exceptions to the ALJ's recommendation with the PSC. In an order entered February 14, 1992, the PSC rejected the ALJ's recommendations and approved the District's certificate application, conditioned upon the land acquisition costs coming within the District's estimate. The Sextons appeal.
II.

A.


Buffer-Zone Requirements    The Sextons' primary argument is that the proposed location for the sewage lagoons violates the buffer -zone requirements promulgated by the Department. These provisions establish distances that must be maintained between sewage treatment plants and occupied dwellings. As a guiding principle, the rules mandate that the site should "be as far as practicable from any present built-up[.]" 64 W. Va. C.S.R.

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