1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Jefferson County Vision, Inc.,

Petitioner

vs) No. 19-0774

Public Service Commission of West Virginia

and Jefferson Utilities, et al.,

Respondents

MEMORANDUM DECISION

Jefferson County Vision, Inc., (“JCV”),

1 appeals the August 2, 2019, order of the 

Public Service Commission of West Virginia (“Commission”) that dismissed its pending 

complaint regarding the issuance of an emergency certificate of convenience and necessity 

to Jefferson Utilities, Inc. (“JUI”),

2 to extend water service to an industrial park site known

as Jefferson Orchards in Ranson, West Virginia. The Commission has filed its requisite 

Statement of Reasons for the Entry of its Order.3

 

This Court has considered the parties’ briefs, oral arguments, and the appendix 

record. Upon application of the standard of review and the pertinent authorities, this Court

finds no substantial question of law and no prejudicial error. For these reasons, a 

memorandum decision affirming the final order of the Commission is appropriate under 

Rule 21 of the Rules of Appellate Procedure.

1

According to JCV’s complaint, it is a nonprofit corporation formed “to promote, 

among other things, responsible development within Jefferson County including proposed 

utility infrastructure.”

2

JUI is a privately owned company that provides water treatment and potable water 

delivery service in Jefferson County. As such, it is regulated as a public utility. 

3

Christopher P. Stroech appeared on behalf of JCV, and John J. Meadows, Todd 

Swanson, Peter J. Raupp, and Ryan D. Ewing represented JUI. Jessica M. Lane and Natalie 

N. Terry responded for the Commission. Susan J. Riggs filed an amicus curiae brief on 

behalf of Roxul, USA, Inc., in support of the Commission’s decision. 

FILED

June 15, 2020

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

On July 12, 2018, the Commission approved an application filed by JUI for an 

emergency certificate of convenience and necessity to extend water service to Jefferson 

Orchards for use by a new manufacturing facility to be constructed in the industrial park.

Roxul USA, Inc., planned to build and operate the Rockwool stone wool manufacturing 

facility in Jefferson Orchards and to receive water from JUI. The West Virginia 

Infrastructure and Jobs Development Council (“WVIJDC”), a public economic 

development authority that provides funding for public utility expansion and renovation 

projects throughout the state, approved the water line extension project and designated it 

as an “emergency project.”4

 The estimated cost of the project was $4,850,000 and was to 

include the installation of approximately 18,050 linear feet of sixteen-inch water line, a 

795,000-gallon water storage tank, a 1,200 gallon per minute triplex pressure booster 

station, an altitude fault vault, and all other necessary appurtenances. The cost was to be 

funded by a $4,520,000 loan from the WVIJDC to the Jefferson County Development 

Authority (“JCDA”) and $330,000 provided by JUI from its cash flow. JUI indicated that 

the project would have no impact on the rates of its existing customers. Following public 

notice5 and a favorable evaluation by the Commission staff, the Commission granted the 

application for the certificate in a July 12, 2018, order subject to certain conditions. 

Specifically, the order provided:

IT IS FURTHER ORDERED that if there are any 

changes in the Project plans or scope, as well as the terms of 

any financing other than grants or loans that impact the rates, 

Jefferson Utilities, Inc., must seek Commission approval of 

those changes.

IT IS FURTHER ORDERED if there are any changes 

in the plans or scope, or terms of financing of the Project, or 

changes in rates associated with the Project, Jefferson Utilities, 

Inc., must petition to reopen for Commission approval of such 

changes. Changes in project costs of financing do not require 

separate approval if the changes do not affect rates and 

4

See W.Va. Code § 31-15A-2(h) (1998) (defining “emergency project” as “a project 

which the [WVIJDC] has determined: (1) Is essential to the immediate economic 

development of an area of the state; and (2) will not likely be developed in that area if 

construction of the project is not commenced immediately”).

5

West Virginia Code § 24-2-11 (2017) sets forth the requirements for a certificate 

of public convenience and necessity and provides for notice of any application for a

certificate to be made by publication. The statute further allows for a formal hearing to be 

waived in the absence of substantial protest. Because no protests or petitions to intervene 

were filed in response to the publication providing notice of JUI’s application, no public 

hearing was held.
3

Jefferson Utilities, Inc., submits an affidavit from a certified 

public accountant attesting to the lack of rate impact.6

(Footnote added). 

Six months after the Commission approved the application and granted the 

certificate, David Tabb, a JUI customer and non-party to the certificate case, filed a motion 

seeking to have the Commission review the project and issue a stop work order. Mr. Tabb 

asserted that JUI had violated the July 12, 2018, certificate order by not seeking the 

Commission’s approval of changes to the project. In that regard, Mr. Tabb noted that 

funding for the project was no longer being provided by JCDA through a WVIJDC loan; 

that the construction bids received for the project exceeded the initial cost estimate by at 

least fourteen percent; and that Roxul/Rockwool had agreed to provide substitute funding 

and had executed agreements with JUI to replace those between JUI and JCDA. Thereafter, 

the Commission staff recommended that the Commission reopen the certificate case based 

on its concern that the project revisions would have an impact on customer rates. The 

Commission staff also sought to join Roxul/Rockwool as a necessary party. 

Roxul/Rockwool opposed the Commission staff’s petition to join it as a party, 

maintaining that it had simply “stepped into the shoes” of JCDA and because JCDA was 

not a party to the certificate case, there was no reason for it to be made a party. JUI also 

filed a response in which it acknowledged that the project costs had increased from 

$4,850,000 to $5,605,229 based on the construction bids received and that 

Roxul/Rockwool had replaced JCDA as the funding source. However, JUI maintained that 

the scope of the project remained the same and the financing changes would not impact 

customer rates because JUI’s share of the costs remained at $330,000 as approved by the 

Commission in the July 12, 2018, order granting the certificate. 

On February 22, 2019, the Commission issued a procedural order reiterating the 

conditions set forth in the July 12, 2018, order that would require JUI to request further 

approval from the Commission for project changes. The Commission held its ruling on 

whether to reopen the certificate case in abeyance pending submission of an affidavit from

JUI’s certified public accountant regarding any rate impact as a result of the project 

changes. JUI was also required to file with the Commission a detailed revenue requirement 

calculation and cash flow statement as well as sample journal entries demonstrating the 

recording of the transfer of the project to Roxul. 

6

These conditions are consistent with West Virginia Code § 24-2-11(j) (2017), 

which provides: “A public utility, including a public service district, which has received a 

certificate of public convenience and necessity after July 8, 2005, from the commission 

and has been approved by the Infrastructure and Jobs Development Council is not required 

to, and cannot be compelled to, reopen the proceeding if the cost of the project changes but 

the change does not affect the rates established for the project.” 
4

The requisite information was filed by JUI with the Commission on March 14, 2019. 

Approximately ten days before, on March 4, 2019, which was almost nine months after the 

period to intervene in the certificate case expired, the petitioner herein, JCV, and another 

JUI customer, Leigh Smith, filed a joint petition to intervene in the closed certificate case. 

That same day, they also filed a petition for reconsideration of the Commission’s February 

22, 2019, order, arguing that JUI was required to seek approval of the substitute funding 

from Roxul/Rockwool. They also argued that the change in the funding source would 

impact customer rates. JUI filed responses objecting to these petitions.

By order issued March 26, 2019, the Commission denied the Commission staff’s 

petition to reopen the certificate case and JCV and Ms. Smith’s petition for reconsideration 

of the February 22, 2019, order. The Commission found that the scope and plans for the 

project had not changed and the cost increase and funding revisions were not going to 

impact customer rates. As such, the Commission concluded that its approval of the project 

changes was not required. 

On April 5, 2019, JCV and Ms. Smith filed a petition for reconsideration of the 

March 26, 2019, order. They claimed a denial of due process because they were not 

allowed to pursue and dispute factual issues regarding the project. Following a response 

from JUI, the Commission denied the petition for reconsideration by order entered May 3, 

2019. 

While JCV and Ms. Smith were attempting to intervene in the certificate case, they 

also sought to reopen the certificate case by filing a completely separate complaint with 

the Commission on January 22, 2019, which is now the subject of this appeal. In that 

complaint, they alleged that JUI was in violation of the Commission’s July 12, 2018, order 

for failing to reopen the certificate case and secure the Commission’s approval of the 

changes to the scope, costs, and financing of the project. JCV and Ms. Smith indicated that 

they filed their complaint based on a local newspaper article that reported the financing 

changes and the increased costs, and noted that construction had begun. JCV and Ms. 

Smith asserted that the project changes were likely to increase the rates of other JUI 

customers and sought interim relief in the form of a stop work order. They also sought to 

have the Commission reopen the certificate case and issue a procedural order allowing for 

discovery and a hearing regarding the project. 

By order entered on August 22, 2019, the Commission dismissed the complaint on 

the grounds that JCV and Ms. Smith were seeking the same relief that they sought in the 

closed certificate case. The Commission stated that although JCV and Ms. Smith were not 

parties to the certificate case, the Commission had decided all of issues raised in their 

complaint in the February 22, 2019, March 26, 2019, and May 3, 2019, orders entered in 

the certificate case. Accordingly, the Commission dismissed the complaint. This appeal 

followed. 
5

Our standard of review for final orders entered by the Commission is well 

established:

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 court’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. Pub. Serv. Comm’n of W.Va., 166 W.Va. 423, 276 

S.E.2d 179 (1981). To be more concise,

“[t]he 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 findings; and, (3) whether the 

substantive result of the Commission’s order is proper. 

Syl. Pt. 1, Central W.Va. Refuse, Inc. v. Pub. Serv. Comm’n of W.Va., 190 W.Va. 416, 

438 S.E.2d 596 (1993). 

JCV argues that the Commission committed procedural and legal error by 

dismissing its complaint as a “collateral proceeding.” JCV maintains that it had the right 

to seek relief from the order issued in the certificate case by filing a separate complaint 

pursuant to 150 C.S.R. § 6.2.1 which provides:
6

Any person or entity may complain to the Commission 

by petition substantially in the form of Form No. 1 attached to 

these Rules of anything done or omitted to be done by the 

public utility in violation of any of the provisions of the Public 

Service Commission laws of West Virginia[.] 

See also W.Va. Code § 24-4-6 (1923). JCV also relies upon syllabus point eight of 

Affiliated Const. Trades Foundation v. Public Serv. Comm’n of W.Va., 211 W.Va. 325, 565 

S.E.2d 778 (2002), which holds:

Any person or entity having a good faith reason to file 

a complaint against a public utility under West Virginia Code 

§ 24-4-6 (1923) (Repl.Vol.2001) has standing to do so, 

notwithstanding the fact that such person or entity was not a 

party to prior proceedings for a certificate of convenience and 

necessity or other proceedings to which the complaint relates.

Upon review of the Commission’s final order, it is clear that JCV’s complaint was 

not dismissed as an impermissible collateral proceeding or for lack of standing. Rather, 

the Commission dismissed the complaint because JCV did not present any new facts or 

substantive issues that were not adequately addressed in the certificate case. In other 

words, the Commission considered the merits of all the arguments made by JCV in the 

orders entered on February 22, 2019, March 26, 2019, and May 3, 2019, in the certificate

case and found no basis to reopen the matter. Specifically, the Commission found no 

change in the project plans or scope based upon the information contained in the filings 

made in the certificate case in response to the motion to reopen the proceeding.

7

 Likewise, 

7

In its March 26, 2019, order, the Commission rejected the contention that the scope 

and project plans had changed, stating:

The JCV and Ms. Smith’s petition for reconsideration 

asserted that the scope of the Project has been changed to 

reflect approximately 1,600 feet less of sixteen-inch pipe from 

the preliminary design filed in the application and the final bid 

cost. March 4, 2019 Petitioner for Reconsideration at 3. They

also claimed that the Project has changed because the amount

of water to be sold to ROXUL has decreased from the original 

projections. Id. The assertions made by JCV and Ms. Smith 

are not correct. A reduction of the length of the water line 

installed by approximately 1,600 feet, for a Project of this size, 

between the final design and bids to the preliminary design is 

not significant and does not change the scope of the Project. 

Furthermore, there is no difference in the annual revenue to be 
7

the Commission found the changes in the project’s costs and financing did not require 

reopening of the certificate case for Commission approval because JUI submitted an 

affidavit from its certified public accountant attesting to a lack of rate impact.8

 Thus, JCV’s 

complaint was only dismissed after the Commission determined there were insufficient 

grounds to reopen the certificate case. 

JCV also argued that it was denied due process because the Commission did not 

permit discovery or hold a hearing before dismissing its complaint. However, the record 

shows that extensive discovery occurred in the certificate case. Moreover, JCV did in fact 

serve additional discovery on JUI after it filed its January 22, 2019, complaint. With respect 

to a hearing, the Commission was not required to hold a hearing in the certificate case 

because no protest was filed in response to the notice publication.9

 Absent any new facts 

generated by JUI from ROXUL as filed in the application and 

as shown in the March 14, 2019 JUI response to the Procedural 

Order. The requests to reopen based on changes to the Project 

scope and Project-related revenue are unfounded.

 8

With respect to the changes to financing and costs, the Commission made the 

following findings in the March 26, 2019 order:

JUI is in compliance with the Final Order and has 

supplied an affidavit signed by its certified public accountant 

attesting that there will be no rate impact related to the 

increased Project cost and change in source of Project 

financing. Response to Procedural Order at Ex. A. JUI also 

provided its projected revenue requirement calculation, 

projected cash flow analysis and sample journal entries, all 

indicating that the revised Project will not result in any 

additional rate base or impact current rates. The sample journal 

entries record the transfer of approximately $5.275 million of 

utility plant from ROXUL to JUI with an equal amount 

charged to Contributions-in-aid-of-Construction (CIAC). JUI 

did not propose an amortization of the CIAC and the 

Commission will not recognize an amortization of the CIAC in 

a future rate proceeding of JUI. Reopening this case for 

Commission approval of the changes to Project costs and 

source of funding is not warranted because the changes do not 

affect JUI rates. 

9

See note 5, supra.
8

or substantive issues warranting a reopening of the certificate case, there was no 

requirement that the Commission hold a hearing before dismissing JCV’s complaint. 

Simply stated, the Commission has not exceeded its statutory jurisdiction and 

powers, and there is adequate evidence to support the Commission’s findings. Based upon 

our careful review of the record in this matter, we find that substantive result of the 

Commission’s final order is proper. Accordingly, the Commission’s August 2, 2019, order 

is affirmed.10 

Affirmed. 

ISSUED: June 15, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison

10 In its Statement of Reasons for Entry of its Order, the Commission argued that 

this matter is “technically moot” because the water line extension portion of the project 

was completed in October 2019. However, the record showed that the water tank and 

booster station had yet to be installed.