1 STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

City of Kenova, West Virginia
Petitioner

vs) No. 19

- 0919 ( PSC Case No. 18

- 1232

- S

- C)

The Public Service Commission of West Virginia, Respondent

MEMORANDUM DECISION

Petitioner City of Kenova ( City) 1 appeals the September 6, 2019 order of the Public
Service Commission of West Virginia ( Commission) 2 requiring the City to make a leak adjustment credit in the amount of $233.12 to a sewer account following the discovery of
a hidden commode leak.

Upon consideration of the standard of review, the parties ’ briefs, oral arguments and the record on appeal, the Court finds no substantial ques tion of law or prejudicial error. For these reasons, a memorandum decision affirming the Commission ’ s decision is appropriate under Rule 21 of the Rules of Appellate Procedure.

In August 2018, Rebecca Florczak received a hi gh water bill totaling $424.55. 3 After receiving the bill

, Ms. Florczak ’ s daughter began investigating and immediately
realized that a commode in Ms. Florczak ’ s master bathroom was leaking. They fixed the leak by adjusting the chain to the flapper valve. Although Ms. Florc z ak slept in the master
bedroom adjacent to the master bath during the timeframe that the commode leaked, she
had never entered the master bathroom because it had been used exclusively by her recently
deceased husband. 4 And the master bathroom door was not directly adjacent to the master

1 The City of Kenova is represented by counsel , F. Paul Calamita, Esq

.

2 The Commission is represented by staff attorney, John R. Auville, Esq., and general counsel, Jessica M. Lane., Esq.

3 Ms. Florczak’s water usage was typically around 3 ,000 gallons per month. The

sewer bill at issue reflected water usage of 19,200 gallons that month.

4 Ms. Florczak t estified before the Administrative Law Judge (ALJ) that her husband died after being in the hos pital from June 12, 2018 to June 2 7 , 2018. Prior to his death, 

### FILED May 26, 2020

released at 3:00 p.m.
EDYTHE NASH GAISER , CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA2

bedroom. So, although Ms. Florczak slept in the master bedroom, she did not hear the water running in the bathroom.

After discovering the leaking commode , Ms. Florczak requested a leak adjustment
fro m the City. City o fficials informed her that the Commission ’ s rule prohibits granting a leak adjustment. So, Ms. Florczak was required to pay the full amount due in order to
maintain her water service. But, s he fi led a formal c omplaint with the Commission on August 31, 2018. The City filed an answer seeking to dismiss her c omplaint, arguing that
because the high bills were a result of a leaking commode, Ms. Florczak did not qualify for a leak adjustment under Water Rule 4.4.c.1, which provides that “leaki ng commodes . . .
shall not constitute leaks which entitle the customer to a recalculated bill

. ” Following an investigation by the Commission Staff , it filed its Final Memorandum on November 29,
2018 recommending that Ms. Florczak receive a leak adjustmen t credit in the amount of $233.12 because the high bills were most likely caused by a leaking commode that was not
obviou s or detectable to Ms. Florczak , as that area of her residence was closed off due to
the husband ’ s cancer treatment and death.

Foll owing a n evidentiary hearing on December 21, 2018, the Administrative Law Judge (ALJ) entered a recommended decision on February 6, 2019 dismissing the case. 5

The ALJ found that Water Rule 4.4.c. 1 is unambiguous and prohibits the City from granting an adjustment for a commode leak. On February 26, 2019, Ms. Florczak filed exceptions to the recommended decision , asking the Commission to reverse the ALJ ’ s decision and grant her a leak adjustment

. Ms. Florczak argued th at the City was just as responsibl e as she was, if not more so , for failing to detect the leak because the City has a radio read meter system with capability to send an alert on a high mete r read, but the City did not activate the alert system

. And , she argued that there are ex ceptions to every rule

Mr. Florczak used a treatment called BCG, a medication injected into the bladder to destroy cancer cells. Every time he flushed the commode, he had to add a chemical solution to the commode to dilute the chemicals’ toxicity. So, due to the nature of these treatments, the
bathroom was off

- limits to guests before Mr. Florczak’s death. In the month following his death, Ms. Florczak did not go into the bathroom because it had not yet been sterilized to
make it safe to use. She routinel y used the guest bathroom instead, storing all of her
toiletries there.

5 In addition to the testimony provided by Ms. Florczak and her daughter at this hearing , the ALJ also heard evidence from a City meter utility technician who testified that althoug h the City had a special radio read system that alerts for a high meter read in order
to notif y customers of a potential leak prior to issuing a bill, it did not activate the alert system. A technical analyst from the Commission ’s Engineering Division als o provided testimony regarding other cases where leak adjustments had been made in instances where a complainant had a hearing problem or other physical difficulty making it difficult for the leak to be visible or audible to the complainant

.3

and the C ommission had approved a leak adjustment for a customer who could not access the upper level of the home

. She reiterated that she did not hear the leak.

The Commission S taff filed a response to Ms. Florczak’s e xceptions disagreeing
with the ALJ ’ s recommended decision

, noting that the Commission often engages in a
review of the circumstance s of a leak, even if a commode is the cause. 6 The Staff argued
that the Commission should grant the ex ceptions filed by Ms. Florczak because she had good reason for restricting access to the master bathroom

, and the layout of the house mad e hearing the leak difficult because the master bathroom door was not directly adjacent to
the master bedroom

. On September 6, 2019, the Com mission entered a final order determining that the unique facts of this case supported granting a leak adjustment because
the leak was hidden or otherwise undetectable to Ms. Florczak . The City then filed this appeal.

The issue before this Court is wheth er leak adjustments are expressly prohibited under Water Rule 4.4.c.1. The City contends that i n addition to the clear language of the rule stating that “leaking commodes . . . shall not constitute leaks which entitle the customer
to a recalculated bill

, ” the Commission had also explained during the adoption of the rule
that , “we . . . believe that the rule should not apply to leaky commodes, dishwashers or other appliances. We have attempted to place an exclusion to this rule to prevent adjustments in tho se circumstances. The adjustment is intended to be applied for major leaks such as pipes which break.” 7 The City cites two PSC cases involving unoccupied
houses , arguing that the Commission did not engage in a discoverability analysis in those

cases

. 8 Th e City asserts that in this case

, the Commission ’s leak adjustment amounts to a “revised rule through interpretation.”

Conversely, the Commission asserts that it did not change the leak adjustment rule
in this case. It argues that Water Rule 4.4.c.1 do es not contain an absolute prohibition to leak adjustment s , and s i nce adoption of this rule, the C ommission has engaged in a case

by

- case an alysis to determine whether specific facts and circumstances warrant adjustmen ts . The Leak Adjustment Rule provides :

6 The City did not file a response.

7 In re Revised Rules and Regulations for Water Util ., Gen. Ord. No. 188.12, 1995
WL 735601 at *4 (W. Va. P.S.C. Oct. 11, 1995 ) (Emphasis added)

.

8 See Currence v. Elkins Mun. Water Dep’t , No. 03

- 0004

- W

- C, 200 3 W.Va. PUC
LEXIS 1533 (W. Va. P.S.C. April 9, 2003)(finding leaks associated with a toilet in a vacant
house are not entitled to a leak adjustment); Sabo v. Morgantown Util. Bd. , No . 02

- 0367

- WS

- C, 2002 WL 35458289 (W. Va. P.S.C. June 14, 2002)(finding leaks from a toilet are

no t qualified for leak adjustments even though the resident was deceased).4 Each utility shall develop and implement a written policy concerning the adjustment of customer bills where the bill reflects unusual usage which can be attributable to leakage on
the customer ’ s side of the meter. Leaking commodes, dripping faucets, malfunctioning appliances and similar situations shall
not constitute leaks which entitle the customer to a recalculated bill. The policy shall be maintained in the utility ’ s office for inspection by the public and shall be applied in a non

discriminatory manner to all customers. The reasonableness of the utility ’ s policy or practice with respect to a policy shall be subject to Commission review in a formal complaint proceeding. [ 9 ]

The Commission promulgated the Leak Adjustment Rule in its current form in
1995. 10 The Commission notes that it discussed utility opposition to customer leak adjustments in its 1995 order, specifically , “[s]everal parties generally opposed mandatory leak adjustments. The y believe that the adjustments send the wrong message to customers regarding maintaining their lines. We continue to believe leak adjustments are
reasonable

. ” 11 In the same o rder, the Commission noted utilities ’ requests that the
Commission limit leak adju stments t o underground leaks only, and purposefully exclude leaking commodes and faucets. 12 The Commission contends that it refused to limit leak adjustments to underground leaks, and instead incorporated the rule language relied on by
Petitioner to disall ow leaks that are obvious to the customer.

The Commission asserts that t he Leak Adjustment Rule includes two ways to
evaluate leaks for eligibility for an adjustment. First, the use of the word “ entitle ” signals
to water utilities and their customers tha t customers are not automatically entitled to an adjustment for leaks caused by leaking commodes, dripping faucets

, or malfunctioning

9 Water Rule 4.4.c.1 (Emphasis added).

10 In re Revised Rules and Regulations for Water Util ., Gen. Ord. No. 188.12, 1995
WL 735601

.

11 G.O. 188.12 at 3 (Emphasis added)

. The Commission explains that s hortly after issuing G.O. 188.12, the Commission finalized corresponding Sewer Rules through
General Orders 188.12 In the Matter of Revised Rules and Regulations for Water Utilities
and General Order 186.8 In the Matter of Revised Rules and Regulations for Sewer Utilities November 3, 1995.

12 Id . at 4

.5

appliances. Second, the Leak Adjustment Rule provides that the Commission will review in a formal complaint proceeding th e reasonableness of a utility ’ s leak adjustment policy and its application to the circumstances of a particular leak. Because an endless number of scenarios can lead to a customer leak, the Commission maintains that it provided guidance as to what a leak adjustment policy should look like, while reserving its authority
to review individual fact patterns.

The Commission argues that i n subsequent o rd ers applying the language of Water
Rule 4.4.c.1

, it affirmed that the rule does not prohibit a leak adjustm ent for a leaking commode, dripping faucet

, or malfunctioning appliance. It contends that it has also consistently engaged i n a n individual review of the circumstances in each case , citing to several where it held that leaks may qualify for an adjustment if the leak was hidden, or not obvious or detectable, to the customer. 13

The Commission asserts that i n McDowell v. Jefferson Utilities Inc. and Jefferson County Pub. Serv. Dist. 14

, a case involving a leak originating from a faulty spigot at a non

detectabl e location at the rear of a residence, it described its application of the leak adjustment rule as follows:

[T]he underlying policy behind the rules is that the

customer

, not the utilities, should be responsible for costs
related to leaks on the custome rs ’ side of the meter that are obvious to the customer, and, thus are easily repaired by the customer and preventable through routine maintenance. As the Commission has recognized, “[o]ne purpose of the applicable
Water Rules and Sewer Rule s is to deny le ak adjustments in cases where the accrual of a large bill is due to the customer ’ s

13 See Collins v. Corp. of Shepherdstown , Case No. 01

- 1430

- WS

- C (Commission Order, July 23, 2002)(leak not noticeable because it originated in broken pipe in wall and water did not run into house); Sole nberger v. Martinsburg Mun. Water and Sewer Dep’ts.

, Case No. 05

- 0645

- WS

- C (Recommended Decisi on, August 15, 2005, Final Commission Order, September 7, 2005)(utility agreed to leak adjustment because leak due to faulty bathtub faucet located in vacant house owned by customer ) ; Mayfield, Inc. v. Berkeley Cnty

. Pub. Serv. Water Dist. , Case No. 02

- 141 6

- PWD

- C (Recommended Decision, June 5, 2003, Final Commission Order June 25, 2003)(leak in crawl space undetected for a period of time); and Watkins v. City of Grafton , Case No. 97

- 1545

- S

- C (Commission Order, February 11, 1998)(leak adjustment made to cust omer based on hardship waiver under Water and Sewer Rules because the customer had hearing problems and difficulty
discern i ng the sound of running water).

14 Case No. 09

- 0769

- W

- PSD

- C ( Commissio n Final Order , January 11, 2011 )

.6 own failure to notice an obvious leak (like a leaky toilet)”
Col lins v. Corp. of Shephe rdstown , Case No. 01

- 1430

- WS

- C (Commission Order dated July 23, 2002) at p. 7. [ 15 ]

In the same decision, the Commission stated:

Applying the underlying policy of customer responsibility for readily discernable leaks leads t o the obvious corollary that if the customer has a leaking toilet, dripping faucet, malfunctioning applia nce or s imilar situation that is not obvious or detectable to the customer, a leak adjustment is approvable under the rules. [ 16 ]

The Commission contends , and we agree, that a review of t he cases cited by the City also support s the Commission’s argument that Water Rule 4.4.c.1 does not absolutely prohibit a billing adjustment for undetected water consum ption relating to commodes and that the
circumstances of a leak matter. 17

When this Court reviews the Commission ’ s administrative orders, we have explained that

“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 Comm ission exceeded its statutory jurisdiction and powers; (2) whether there is adequate evidence

15 Id . at 5.

16 Id

. See als o Jenkins v. Berkeley Cty. Pub. Serv. Sewer Dist ., Case No. 17

- 0663

- PSD

- C (W. Va. P.S.C. Oct. 1, 2018)( reaffirming principles discussed in McDowell and permitting bill adjustment for a hidden leak resulting from a malfunctioning water softener valve).

17 See Sabo v. Morgantown Util. Bd. , No . 02

- 0367

- WS

- C, 2002 WL 35458289 at *2 (W. Va. P.S.C. June 14, 2002) ( “W hile [Commission Staff] generally agreed that a leaking commode under most circumstances did not qualify for a leak adjustment, [Commission Staff] w ould reserve final judgment until a field investigation was comple ted.” ) ; see also Currence v. Elkins Mun. Water Dep’t , No. 03

- 0004

- W

- C, 200 3 W.Va. PUC LEXIS 1533
at *6 (W. Va. P.S.C. April 9, 2003) ( ALJ dismissed the case after a “consideration of all of the above,” after no objections were filed to the Staff’s recommendation of dismissal

. ).7 to support the Commission ’ s findings; and, (3) whether the
substantive result of the Commission ’ s order is proper.” [ 18 ]

Recognizing a deferential standard of review, this Court has also stated, “ ‘ [t] he principle is well established . . . that an 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. ’ ” 19

T he Commission reviewed the City’ s application of its leak adjustment policy to the particular facts of this case in a manner consistent with its previous decisions and Water Rule 4.4.c.1, and there was adequate e vidence to justify a leak adjustment. The undisputed testimony in the record shows that due to the nature of the cancer treatment s of Ms. Florczak’s late husband

, the bathroom was strictly off

- l imits to guests before and after his
death. Ms. Florczak exclusively used the guest bathroom and did not hear the water
because the master bathroom door was not directly adjace nt to the master bedroom

. Under
this Court ’ s highly deferential standard of review, we find no reason to disturb the
Commission ’ s order. 20 Because we find that the grant of the leak adjustment was proper, the City ’ s request for attorney’s fees and costs is not warranted

. 21

18 Syl. Pt. 2, Pool v. Greater Harrison Cty. Pub. Serv. Dist. , 241 W. Va. 233, 821 S.E.2d 14 (2018) (citing 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)).

19 Syl. Pt. 1, in part, Sierra Club v. Pub. Serv. Comm’n , 241 W. Va. 600, 827 S.E.2d 224 (2019) (citations omitted).

20 See W. Va. Citizens Action Group v. Pub. Serv. Comm’n , 233 W. Va. 327, 758
S.E.2d 254 (2014). It is also important to note that a leak adjustment d oes not adversely impact the C ity or its other customers financially. In a case where a customer is awarded a leak adjustment, the customer ’s account is credited the amount of excess revenue bi lled,
net of the actual varia ble costs attributed to leaked w ater. In this manner, the utility is reimbursed for the actual variable cost of the water it produced. So, w ith the paymen t of a
leak

- adjusted bill, the C ity is made whole for the actual expenses incurred in producing the
additional water but does not receive reven ues over and above those costs.

21 The City additionally lodged an objection below to the Commission’s web docket practice to restrict certain cases from open access on the Commi ssion website. However, the ALJ overruled the objection. The City now raises a second issue asserting that the
Commission ’s restr icted we b docket violates the Freedom of Information Act (FOIA) , and
that because taxpayer dollars fund the Commission ’s oper ations, the Commission should not be able to profit from these electronic records by selling the records to Westlaw and
Lexis while limiting access for taxpayers. The City maintains that w ithout access to the8

F or these reasons, we affirm the Commission ’ s September 6, 2019 , order requiring the City to make a leak adjustment credit in the amount of $233.12 to the sewer account of
Ms. Florczak.

Affirmed.

ISSUED : May 26, 2020

CONCURRED IN BY :

Chief Justice Tim Armstead Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison

records, complainants and courts are at a disa dvantage because only the Commission can rely on the full history of decisions. We find this issue of no merit. As the Commission correctly contends, FOIA does not require a public body to publish public documents on the internet, but rather only require s a public body to provide non

- protected information upon request. See W. Va. Code § 29B

- 1

- 3 (2019). A nd, a s represented by the Commission, it has recently reviewed its website restriction practices and has decided to post un

- redacted versions, if possibl e, of Orders issued in customer billing complaints on or after October 23, 2019.