Affiliated Construction Trades Foundation v. Public Service Commission

565 S.E.2d 778, 211 W. Va. 315
CourtWest Virginia Supreme Court
DecidedJuly 3, 2002
Docket29989
StatusPublished
Cited by6 cases

This text of 565 S.E.2d 778 (Affiliated Construction Trades Foundation v. Public Service Commission) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Affiliated Construction Trades Foundation v. Public Service Commission, 565 S.E.2d 778, 211 W. Va. 315 (W. Va. 2002).

Opinions

ALBRIGHT, Justice.

This is an appeal by the Affiliated Construction Trades Foundation (hereinafter “ACT” or “Appellant”), a division of the West Virginia State Building and Construction Trades Council, AFL-CIO, from an April 10, 2001, order of the Public Service Commission (hereinafter “PSC”) dismissing a complaint filed by ACT. The Appellant requests this Court to reverse the dismissal order, alleging that the PSC should consider ACT’s allegations that the Big Sandy Peaker Plant, LLC, (hereinafter “Big Sandy”) violated the terms of a certificate of public convenience and necessity authorizing the construction of the Big Sandy Peaker electric generation plant in Wayne County, West Virginia. Through this appeal, ACT seeks to obligate the PSC to investigate and proceed to a hearing on the complaint. Having thoroughly reviewed the record, briefs, and arguments of counsel, we affirm the ultimate decision of the PSC. Notwithstanding the technical mootness of the issues raised on appeal, based upon the fact that the facility’s construction is now complete, we address the issues raised by ACT under established principles allowing review where issues are of great public interest.

I. Facts

On April 7, 2000, Big Sandy filed an application with the PSC, seeking a certificate of public convenience and necessity to construct an electric generating facility1 in Wayne County. Big Sandy asserted in its application that it was not a public utility and was exclusively a wholesale generator. The application also asserted that the proposed facility was unregulated, citing federal law and the ongoing study of deregulation initiated by the PSC at the direction of the West Virginia Legislature.2 The application included the following pertinent assertions concerning Big Sandy’s plans for funding the construction of the plant:

Big Sandy has the necessary funding to construct and operate the Facility. Big Sandy will be responsible for the construction and operation of the Facility and for the sale of electricity generated at the Facility.
Big Sandy is currently planning to utilize internal funding to develop and construct the Facility and to pay for AEP’s [American Electric Power] construction of the Transmission Line. After the Facility begins commercial operation, Big Sandy may consider permanent financing of the cost of the Facility and its investment in AEP’s construction of the Transmission Line.
The entire financial risk of constructing and operating the Facility will be bourne by Big Sandy. If the Facility were to become uneconomic as a result of changes in environmental regulations, fuel costs, competition or reduced demand for power (which Big Sandy is confident will not be the case), Big Sandy, and not the West Virginia ratepayers, will suffer the financial loss.

[319]*319With regard to the proposed economic benefits, Big Sandy asserted as follows in its application:

Construction and operation of the Facility will provide a number of economic benefits. Approximately 75 workers will be employed during construction. Big Sandy will employ approximately three full-time employees to operate the Facility. The Facility will benefit the local economy and community through the purchase of products and services that can be provided locally and by enhancing the tax base of Wayne County.

ACT did not protest or otherwise participate in the PSC consideration of Big Sandy’s application, and the PSC granted the certificate on June 23, 2000, after a protest filed by a third party was resolved by agreement. The PSC found that “Big Sandy is not a public utility,” reflecting agreement with Big Sandy’s assertion of the “unregulated” status of the project. However, the PSC also found that its project required a certificate of convenience and necessity. Based on those findings, the PSC granted a waiver of the obligation to provide certain information to the PSC, in part since the project would not involve revenues from West Virginia ratepayers. The PSC also found that “Big Sandy has the necessary funding for, and will be solely responsible for the construction and operation, of the station....” The PSC order did not address the representations in Big Sandy’s application that the project would confer economic benefit on the local area.

Prior to the filing of its application with the PSC, Big Sandy, through Constellation Power, Inc., a related organization, negotiated with the Wayne County Commission to obtain financing for the facility through industrial and commercial development revenue bonds to be issued by the county commission. According to the bond resolution adopted by the county commission, those negotiations began on or before February 22, 2000. A formal request was presented to the county commission on March 20, 2000, which committed to the project and the bonds on March 27, 2000. The formal bond resolution, dated February 20, 2001, states that the developer represented to the county commission on February 22, 2000, that it would “attempt to use local workers if possible during construction of the [pjroject.” The resolution further recites that in its March 20, 2000, request to the county commission, Constellation proposed payments to county in-strumentalities in lieu of taxes totaling $425,000, later modified to provide for $425,000 annually to the county commission for a term of twenty years, and an additional $600,000, payable over three years to the Wayne County economic development authority.

On December 13, 2000, ACT filed a complaint with the PSC, alleging that Big Sandy had misrepresented certain material facts to the PSC in obtaining the certificate of public convenience and necessity. Act asserted that although the certificate application indicated that the facility would be funded through “internal funding,” Big Sandy had funded the project through industrial and commercial development revenue bonds. Additionally, ACT asserted that although the certificate application indicated that the construction would benefit the local economy, Big Sandy had not significantly utilized a local workforce in the construction of the facility.

In seeking a remedy for the alleged violations, ACT requested that the PSC (1) revoke the certificate and order construction to cease; (2) revoke the waiver of the obligation to submit certain information to the PSC; (3) investigate the circumstances under which Big Sandy applied for and obtained the certificate; (4) refuse to issue a new certificate until the PSC determines that Big Sandy has complied with West Virginia Code § 24-2-11 (1983) (Repl.Vol.2001), including the burden to demonstrate an improved economy; and (5) order Big Sandy to hire exclusively local workers and contractors for the construction and operation of the facility.

On January 8, 2001, Big Sandy moved to dismiss ACT’s complaint, contending that ACT lacked standing and further maintaining that ACT’s allegations of misrepresentation or certificate violation were erroneous.3 [320]*320The PSC dismissed ACT’s complaint on April 10, 2001, finding that ACT was not a party to the certification, that ACT alleged no violation of public utility law, and that the PSC did not have authority to grant the relief sought. The PSC based its dismissal order upon several considerations.

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Affiliated Construction Trades Foundation v. Public Service Commission
565 S.E.2d 778 (West Virginia Supreme Court, 2002)

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Bluebook (online)
565 S.E.2d 778, 211 W. Va. 315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/affiliated-construction-trades-foundation-v-public-service-commission-wva-2002.