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CITY OF WHEELING, Petitioner, v. PUBLIC SERVICE COMMISSION OF WEST VIRGINIA; and City of Benwood, Respondents.
Petitioner City of Wheeling (“Wheeling”) appeals Respondent Public Service Commission of West Virginia's (“PSC”) November 12, 2021 final order and its December 1, 2021 order denying Wheeling's petition for reconsideration and motion to stay. Pursuant to a complaint filed by Respondent City of Benwood 1 (“Benwood”), in which Benwood challenged Wheeling's revised rate for sewer treatment services, the PSC began an investigation in accordance with West Virginia Code § 24-2-1(b)(6) (eff. 2020). In its November 12, 2021 final order, the PSC recalculated the revised rate for sewer treatment services sold by Wheeling and noted that the revised rate was applicable for all of Wheeling's wholesale customers. In response, Wheeling filed a petition for reconsideration and a motion to stay, arguing that the PSC had no subject matter jurisdiction when it issued the November 12, 2021 final order pursuant to the 120-day time period in West Virginia Code § 24-2-1(b)(6). The PSC denied Wheeling's petition and motion, and this appeal followed. Having considered the briefs submitted on appeal, the appendix record, the parties’ oral arguments, and the applicable legal authority, we find that the PSC had jurisdiction over the dispute when it issued its November 12, 2021 final order. Accordingly, we affirm the rulings of the PSC.
I.
FACTUAL AND PROCEDURAL HISTORY
On April 6, 2021, Wheeling adopted a city ordinance increasing the rate charged to its wholesale sewage treatment customers by 45% to $3.86/Mgal. Wheeling filed the city ordinance with the PSC on April 14, 2021. Then, on May 3, 2021, Benwood—a political subdivision of the state and wholesale purchaser of sewer treatment services provided by Wheeling—filed a complaint with the PSC, pursuant to West Virginia Code § 24-2-1(b)(6), challenging Wheeling's revised rate. West Virginia Code § 24-2-1(b)(6) provides:
(b) The jurisdiction of the [PSC] over political subdivisions of this state providing separate or combined water and/or sewer services and having at least 4,500 customers and annual combined gross revenues of $3 million or more that are political subdivisions of the state is limited to:
․
(6) Investigation and resolution of disputes between a political subdivision of the state providing wholesale water and/or wastewater treatment or other services, whether by contract or through a tariff, and its customer or customers, including, but not limited to, rates, fees, and charges, service areas and contested utility combinations: Provided, That any request for an investigation related to a dispute that is based on the act or omission of the political subdivision shall be filed within 30 days of the act or omission of the political subdivision and the [PSC] shall resolve the dispute within 120 days of filing. The 120-day period for resolution of the dispute may be tolled by the [PSC] until the necessary information showing the basis of the rates, fees, and charges or other information required by the [PSC] is filed: Provided, however, That the disputed rates, fees, and charges fixed by the political subdivision providing separate or combined water and/or sewer services shall remain in full force and effect until set aside, altered or, amended by the [PSC] in an order to be followed in the future.
(Emphasis both omitted and added).
On June 2, 2021, the PSC concluded that Wheeling's ordinance did not include all the information necessary to show the basis of Wheeling's rate increase, and therefore, the PSC lacked the information needed to evaluate Benwood's complaint. As such, the PSC ordered Wheeling to provide additional information within thirty days, including a Class Cost of Service Study in support of its revised rate. The PSC also tolled the 120-day time period, in accordance with West Virginia Code § 24-2-1(b)(6), pending the filing of the requested information. However, for reasons that are unclear from the record, the date was tolled for forty-five days until October 15, 2021.2
On July 2, 2021, Wheeling filed the information required by the PSC, including a Class Cost of Service Study. Upon receipt of the information, PSC staff informed Wheeling that the Class Cost of Service Study contained errors. Thirteen days later, on July 15, 2021, Wheeling filed a revised Class Cost of Service Study. Thereafter, on July 19, 2021, PSC Staff filed a motion requesting that the proceedings be tolled for thirteen days because Wheeling's first Class Cost of Service Study contained errors and failed to support Wheeling's rate increase.
By order dated July 22, 2021, the PSC granted an extension, ordering that the deadline for a decision was now October 28, 2021 (thirteen days from the previously tolled deadline, October 15). A hearing before an administrative law judge was conducted in August, and a recommended decision was issued on September 13, 2021. In the recommended decision, Wheeling's revised rate for sewer treatment services of $3.68/Mgal was accepted. Benwood then filed exceptions to the recommended decision on September 24, 2021, and the PSC's staff filed exceptions to the recommended decision on September 28, 2021. Wheeling replied to the exceptions filed by the PSC's staff.
On October 26, 2021, the PSC issued an order in which it found that Wheeling did not file all of the necessary information showing the basis of its revised rate and other information required by the PSC until July 15, 2021. Therefore, the PSC concluded that West Virginia Code § 24-2-1(b)(6) authorized the deadline to be tolled 120 days from July 15, 2021, the date that Wheeling filed all of the necessary information—and ordered the deadline extended to November 12, 2021.
On November 12, 2021, the PSC issued its final order and recalculated the rate for wholesale sewer treatment services to $2.87/Mgal. The PSC required Wheeling to charge the lower wholesale rate beginning on the date of the final order. On November 22, 2021, Wheeling filed a petition for reconsideration of the final order and a motion to stay, arguing that the 120-day time period had passed, and the PSC did not have subject matter jurisdiction over the dispute, pursuant to West Virginia Code § 24-2-1(b)(6), when the PSC issued its final order on November 12, 2021. On December 1, 2021, the PSC denied Wheeling's petition for reconsideration and motion to stay, concluding that “W. Va. Code § 24-2-1(b)(6) authorizes the [PSC] to toll the 120-day period for resolution of this dispute from July 15, 2021.” This appeal followed.
II.
STANDARD OF REVIEW
The case sub judice is before this Court on appeal from an order entered by the PSC. With respect to this Court's review of such decisions, we previously have held:
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[ of West Virginia], 166 W. Va. 423, 276 S.E.2d 179 (1981), may be summarized as follows: [ ] whether the Commission exceeded its statutory jurisdiction and powers[.]
Syl. pt. 2, in part, Sierra Club, 241 W. Va. 600, 827 S.E.2d 224 (internal citation omitted).
Additionally, we are tasked with interpreting statutory language. “Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review.” Syl. pt. 1, Appalachian Power Co. v. State Tax Dep't of W. Va., 195 W. Va. 573, 466 S.E.2d 424 (1995). Accord Syl. pt. 1, In re Tax Assessment Against Am. Bituminous Power Partners, L.P., 208 W. Va. 250, 539 S.E.2d 757 (2000). Mindful of these principles, we now consider the parties’ arguments.
III.
DISCUSSION
In the case sub judice, Wheeling contends that the PSC: (1) erred in exercising subject matter jurisdiction; (2) exceeded its authority when it issued a final decision after the expiration of the time period provided in West Virginia Code § 24-2-1-(b)(6); and (3) acted arbitrarily when it made tolling calculations. These arguments will be addressed in turn.
Wheeling contends that the text of West Virginia Code § 24-2-1(b)(6) is unambiguous and therefore, should be applied as written. For Wheeling, the statute is clear that the PSC only has subject matter jurisdiction to review and resolve disputes involving political subdivisions providing wholesale wastewater treatment services during the 120-day time period provided in the statute, starting on the day that the complaint is filed. Wheeling argues that 120-day time period began on May 3, 2021—the day Benwood filed its complaint. This would have set the original deadline as August 31, 2021.
Wheeling first argues that the PSC erred in its June 2, 2021 order when the PSC tolled the 120-day time period for forty-five days when it only gave Wheeling thirty days to provide a Class Cost of Service Study. Wheeling contends that, pursuant to West Virginia Code § 24-2-1(b)(6), the PSC may toll the 120-day time period for resolving the parties’ dispute only until the necessary information is obtained, not longer. Wheeling acknowledges that the PSC was within its authority to toll the statute; however, Wheeling does not agree that forty-five days was proper. By adding forty-five days, the deadline for a decision moved from August 31, 2021, to October 15, 2021—when it should have been tolled for thirty days to September 30.
Next, Wheeling argues that the PSC erred in its July 22, 2021 order by tolling the 120-day time period for an additional thirteen days to allow the PSC's staff adequate time to review Wheeling's revised Class Cost of Service Study, which moved the deadline for a decision from September 30, 2021, to October 13, 2021 (or October 28 if the 45-day calculation is used). Accordingly, Wheeling argues that pursuant to West Virginia Code § 24-2-1(b)(6), the last day on which the PSC had jurisdiction to issue a final order in this case was October 13, 2021, and that the PSC failed to do so by this date.
Lastly, Wheeling contends that the PSC erred by once again tolling the decision deadline for a third time on October 26, 2021. According to Wheeling, the PSC deviated from its previous tolling decisions and started a new 120-day time period from the day Wheeling filed its revised Class Cost of Service Study on July 15, 2021. Wheeling states that the PSC was unauthorized to make this “inappropriate calculation,” and that in doing so, the PSC was exceeding the jurisdiction bestowed upon it in West Virginia Code § 24-2-1(b)(6).
The PSC refutes all of Wheeling's arguments and asserts that the 120-day time period was properly tolled—in accordance with the statute—“until the necessary information” was filed. According to the PSC's argument, Wheeling did not provide the PSC with the revised Class Cost of Service Study containing all of the necessary information until July 15, 2021, and the dispute was properly resolved within 120 days of that date, which was November 12, 2021. Furthermore, the PSC contends that although the time period was tolled two times before the ultimate tolling in October of 2021, the PSC recognized that it “did not invoke its full authority to toll the decision due date” at first, but then “recognized and corrected this oversight when it issued its October 26, 2021[ ] [o]rder that tolled the decision due date of this dispute 120 days from July 15, 2021.”
The crux of this case revolves around whether the PSC had subject matter jurisdiction over the dispute between Wheeling and Benwood when it issued its final order on November 12, 2021. The PSC's jurisdiction is exclusively governed by West Virginia Code § 24-2-1(b)(6). As provided above, West Virginia Code § 24-2-1(b)(6) provides:
(b) The jurisdiction of the [PSC] over political subdivisions of this state providing separate or combined water and/or sewer services and having at least 4,500 customers and annual combined gross revenues of $3 million or more that are political subdivisions of the state is limited to:
․
(6) Investigation and resolution of disputes between a political subdivision of the state providing wholesale water and/or wastewater treatment or other services, whether by contract or through a tariff, and its customer or customers, including, but not limited to, rates, fees, and charges, service areas and contested utility combinations: Provided, That any request for an investigation related to a dispute that is based on the act or omission of the political subdivision shall be filed within 30 days of the act or omission of the political subdivision and the [PSC] shall resolve the dispute within 120 days of filing. The 120-day period for resolution of the dispute may be tolled by the [PSC] until the necessary information showing the basis of the rates, fees, and charges or other information required by the [PSC] is filed: Provided, however, That the disputed rates, fees, and charges fixed by the political subdivision providing separate or combined water and/or sewer services shall remain in full force and effect until set aside, altered or, amended by the [PSC] in an order to be followed in the future.
(Emphasis both omitted and added).
Under the provisions of West Virginia Code § 24-2-1(b)(6), the PSC has limited jurisdiction over rate disputes between political subdivisions and its customers. See generally W. Va. Code § 24-2-1(b)(6). The statute provides that the PSC shall resolve disputes within 120 days of the filing of a wholesale customer's complaint but permits the PSC to toll the 120-day time period “until the necessary information showing the basis of the rates, fees, and charges or other information required by the [PSC] is filed.” Id.
Because the resolution of this matter turns upon the meaning of statutory provisions, the rules of statutory construction are essential to our analysis. Where the Legislature's intent is not clear, and the statute's language is ambiguous, we must construe the statute before applying it. “The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.” Syl. pt. 1, Smith v. State Workmen's Compensation Comm'r, 159 W. Va. 108, 219 S.E.2d 361 (1975). See also Syl. pt. 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992) (“A statute that is ambiguous must be construed before it can be applied.”).
West Virginia Code § 24-2-1(b)(6) provides that “[t]he 120-day period for resolution of the dispute may be tolled by the [PSC] until the necessary information showing the basis of the rates, fees, and charges or other information required by the [PSC] is filed[.]” This Court has held:
It is the duty of a court to construe a statute according to its true intent, and give to it such construction as will uphold the law and further justice. It is as well the duty of a court to disregard a construction, though apparently warranted by the literal sense of the words in a statute, when such construction would lead to injustice and absurdity.
Syl. pt. 2, Click v. Click, 98 W. Va. 419, 127 S.E. 194 (1925).
The PSC's jurisdiction over a locally regulated sewer treatment utility rate is invoked when a wholesale customer files a formal complaint. Id. However, West Virginia Code § 24-2-1(b)(6) clearly contemplates that the 120-day time period for resolution of the dispute be tolled until the PSC has all of the necessary rate justification information to adjudicate the complaint. Because the first Class Cost of Service Study submitted by Wheeling was incomplete, the PSC did not have all of the necessary information to adequately evaluate the dispute until the revised Class Cost of Service Study was filed on July 15, 2021. Therefore, the PSC tolled the 120-day time period until July 15, 2021—giving it until November 12, 2021 to resolve the dispute. By giving the PSC a full 120 days to evaluate disputes with all of the necessary information before it, the statute meets the Legislature's goal for the PSC—to timely evaluate disputes and to safeguard the interests of the public and the utilities provided to it. Therefore, the PSC properly tolled the 120-day time period for resolution of the dispute. This interpretation ensures that the PSC will have sufficient time to consider all of the necessary information provided to it.
The word “toll” has not been defined by the Legislature, and there are no official interpretations or rules promulgated by the PSC that speak to the subject matter in West Virginia Code § 24-2-1(b)(6). While both parties’ arguments are consistent with the statutory language, we interpret West Virginia Code § 24-2-1(b)(6) to provide that the 120-day time period begins on the date the necessary information is filed. This calculation is just and reasonable in light of the statutory language in West Virginia Code § 24-2-1(b)(6). Additionally, this interpretation ensures that the PSC will have sufficient time to evaluate all of the necessary information as a whole before issuing a final order.
Finally, to read the statute according to the argument put forth in Wheeling's brief would lead to unfair and unwarranted results. Wheeling's “place on hold” interpretation would permit the non-complaining party to drag its feet throughout the 120-day time period by failing to timely provide all of the information necessary for the PSC to resolve the complaint. In these disputes, because the non-complaining party has absolute control over whether the PSC has the necessary information before it to resolve the complaint, it is a fair and reasonable interpretation of the statute to afford the PSC the full 120-day time period after all of the necessary information is provided to render its decision.
Accordingly, this Court concludes that the PSC had subject matter jurisdiction over the Wheeling-Benwood dispute at the time it issued its final order on November 12, 2021.
IV.
CONCLUSION
For the reasons set forth above, we find no error in the PSC's November 12, 2021 final order, or in the December 1, 2021 order denying Wheeling's petition for reconsideration and motion for stay.
Affirmed.
The majority says that the word “toll” in West Virginia Code § 24-2-1(b)(6) is ambiguous because the Legislature has not defined it. Respectfully, I disagree. The Legislature did not define “toll” because it didn't have to.1 “Toll” means “to stop the running of; to abate ․”2 So, under § 24-2-1(b)(6), the Commission has 120 days to resolve a complaint from the date a customer like Benwood files one; but, the Commission can stop the running of that clock until it receives the information it needs to understand the basis of the challenged rates, fees, and charges.3
The Commission shared that understanding of the tolling provision, at least until October 26, 2021. The record is clear that the Commission initially ran the 120-day clock in line with Wheeling's position—that it starts on the date the request for investigation is filed. On June 2, 2021, the Commission tolled the decision due date by 45 days. While the June 2 order didn't specify a date by which the Commission had to resolve the investigation of Wheeling's ordinance, the docket sheet entry for June 2 did:
6/2/2021 Commission order referring to ALJ for decision by 9/5/2021; Staff Report due 7/23/2021; that as soon as possible but no later than 30 days from the date of this Order, the City Wheeling [sic] shall file further support of its municipal ordinance and wholesale rates; that running of the statutory period for resolution of the complaint is tolled for a period of 45 days, resulting in a statutory decision due date of 10/15/2021 ․
So, as of June 2, 2021, the Commission calculated the decision due date to be October 15, 2021. How did it come up with that date? By adding 120 days to May 3, 2021 (the date Benwood filed its request for investigation) and then adding 45 days to that. Here's the arithmetic: May 3, 2021 (filing date) + 120 days (statutory deadline) + 45 days (first tolling) = October 15, 2021.
On July 22, 2021, the Commission tolled the decision deadline for thirteen more days, from October 15 to October 28. The tolling order tells us so: “The Commission concludes that it is reasonable to grant the request to (i) toll the running of the statutory deadline from October 15, 2021, until October 28, 2021.” The docket sheet does, too: “July 22, 2021 Commission Order extending the ALJ Decision Due Date to 9/18/2021; Joint staff memo due 8/5/2021; Staff Report due 8/5/2021 and the running of the statutory due date is tolled until 10/28/2021; etc.” Again, here's the arithmetic: May 3, 2021 (filing date) + 120 days (statutory deadline) + 45 days (first tolling) + 13 days (second tolling) = October 28, 2021. Those docket entries and the July 22 order demonstrate that the Commission absolutely understood the Legislature's plain direction that the 120-day decision clock begins to tick on the day a customer like Benwood files a request for investigation and not once the Commission has received all information it deems necessary to resolve the matter.
The Commission changed its tune in the October 26, 2021 tolling order. There, the Commission concluded that under § 24-2-1(b)(6), it “should toll the statutory period of 120 days in this case from July 15, 2021, the date that Wheeling filed the necessary information showing the basis of the rates, fees, and charges and other information required by the Commission.” Then, the Commission ordered a new decision date of November 12, 2021 (July 15, 2021 + 120 days 4 ), based on a starting date unsupported by § 24-2-1(b)(6)—the date the Commission determines it has received from the defendant information necessary to understand the basis of the challenged rate.
The Commission's June 2, July 22, and October 26 tolling orders present another problem: in those orders, the Commission tolled the 120-day clock for reasons unauthorized by § 24-2-1(b)(6). In the June 2 order, the Commission stated that “Wheeling [had] not include[d] the necessary information showing the basis of the rates, fees, and charges in the municipal ordinance that is necessary to allow the Commission to evaluate Benwood's complaint,” gave Wheeling an additional 30 days to do so, then tolled the running of the 120-day decision period for 45 days. As Wheeling points out, the Commission has only the authority to toll the running of the decision period clock until “the necessary information ․ is filed,” meaning that in the June 2 order, the Commission exceeded its tolling authority under § 24-2-1(b)(6) by 15 days. There is a similar problem with the July 22 tolling order. The Commission entered that tolling order in response to Commission staff's request for “a 13-day tolling of [the] case ․ to allow Staff time to review Wheeling's Revised Class Cost of Service Study.” And, most importantly, the Commission ordered “the running of the statutory period for resolution of this matter ․ tolled 120 days from July 15, 2021” on October 26 in response to “the complexity of this case and need for additional time for Commission consideration and review ․” Later, the Commission shrugged off its earlier calculation of the decision due date, stating that “in its July 22, 2021 [o]rder, [it had] not invoke[d] its full authority to toll the decision due date by 120 days from the date Wheeling filed its Revised Study,” i.e., July 15, 2021.
Even though this is a statutory interpretation case, those facts at the very least demonstrate that the Commission recognized and understood the plain language of the tolling provision in § 24-2-1(b)(6). The Commission applied that plain language until October 26, 2021, when—two days before the October 28 decision due date—it determined that it needed more time “given the complexity of this case” and reset the start of the decision countdown to the date on which the Commission determined that it had enough information about Wheeling's ordinance. That just doesn't work because § 24-2-1(b)(6) says that the Commission “shall resolve the dispute within 120 days of filing[.]” The statute does not say that the Commission shall resolve the dispute 120 days after the Commission decides that it has received sufficient information regarding the basis of the challenged rate. And, the statute does not say that the Commission may toll the running of the 120-day clock to permit it additional time to render a decision in a complex case. While that may seem harsh, it's an issue for the Legislature to address, not this Court.
The majority expresses concern that a defendant like Wheeling may “drag its feet” and run out the 120-day clock if the clock starts on the date of filing. That concern misunderstands the effect of the tolling provision. If the Commission tolls the 120-day clock for a permissible reason (i.e., to receive the information it needs to evaluate a complaint), it is not disadvantaged because the decision due date is necessarily postponed an equal length of time. For example, if the Commission tolls a decision due date by 30 days to gather necessary information, the original decision due date (date of filing + 120 days) is also postponed by 30 days (date of filing + 120 days + 30 days). As discussed above, that's exactly how the Commission ran the statutory clock until October 26.
The majority has also looked past the effect its construction of § 24-2-1(b)(6) will have on customers like Benwood. Under that statute, “the disputed rates, fees, and charges fixed by the political subdivision providing separate or combined water and/or sewer services shall remain in full force and effect until set aside, altered or, amended by the commission in an order to be followed in the future.” In other words, a customer like Benwood must pay the disputed rate until the Commission issues an order. It's completely logical that the Legislature would want to hold the Commission accountable to deal with these disputes swiftly by starting the 120-day decision clock when the customer files the complaint. Otherwise, the customer bears the financial brunt of delays other than those occasioned by the Commission's pursuit of information necessary to assess the basis for the challenged rate. The Legislature has imposed a 120-day decision period upon the Commission to ensure these disputes receive due attention, but also allows the Commission to stop the running of that clock to enable the Commission to obtain information necessary to resolve a customer complaint. The Legislature struck that balance with intention and care; the majority has now upended it.
For those reasons, I respectfully dissent. I am authorized to state that Justice Wooton joins in this dissenting opinion.
FOOTNOTES
1. Benwood was the complainant below and is listed as a respondent in this matter. However, despite being a party in the proceedings below, Benwood has not filed any documents in this appeal.
2. Wheeling was given thirty days to provide a Class Cost of Service Study. However, rather than toll the deadline for thirty days, the deadline was tolled for forty-five days. The briefs and order do not make clear as to why the tolling was for forty-five days.
1. “ ‘In the absence of any specific indication to the contrary, words used in a statute will be given their common, ordinary and accepted meanings.’ Syl. pt. 1, Tug Valley Recovery Center v. Mingo County Commission, 164 W.Va. 94, 261 S.E.2d 165 (1979).” Syl. Pt. 1, Thomas v. Firestone Tire & Rubber Co., 164 W. Va. 763, 266 S.E.2d 905 (1980).
2. TOLL, Black's L. Dict. (11th ed. 2019).
3. In pertinent part, § 24-2-1(b)(6) states:Provided, That any request for an investigation related to a dispute that is based on the act or omission of the political subdivision shall be filed within 30 days of the act or omission of the political subdivision and the Commission shall resolve the dispute within 120 days of filing. The 120-day period for resolution of the dispute may be tolled by the Commission until the necessary information showing the basis of the rates, fees, and charges or other information required by the Commission is filed ․
4. The Commission's October 26 recalibration of the starting date doesn't account for the 13-day tolling period imposed by the July 22, 2021 order.
Moats, Justice:
JUSTICE ALAN D. MOATS, sitting by temporary assignment. JUSTICE WALKER and JUSTICE WOOTON dissent and reserve the right to file dissenting opinions.
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Docket No: No. 21-1001
Decided: April 26, 2022
Court: Supreme Court of Appeals of West Virginia.
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