Total Environmental Solutions, Inc. v. Mississippi Public Service Commission

988 So. 2d 372, 2008 Miss. LEXIS 337, 2008 WL 2522510
CourtMississippi Supreme Court
DecidedJune 26, 2008
DocketNo. 2007-UR-00607-SCT
StatusPublished
Cited by1 cases

This text of 988 So. 2d 372 (Total Environmental Solutions, Inc. v. Mississippi Public Service Commission) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Total Environmental Solutions, Inc. v. Mississippi Public Service Commission, 988 So. 2d 372, 2008 Miss. LEXIS 337, 2008 WL 2522510 (Mich. 2008).

Opinion

SMITH, Chief Justice,

for the Court.

¶ 1. This appeal arises from a final judgment of the Jackson County Chancery Court which affirmed a final order of the Mississippi Public Service Commission (“Commission”) regarding an increase in rates for water service provided by Total Environmental Solutions, Inc. (“TESI”) in Adams, Hancock, Harrison, and Jackson Counties.

¶ 2. We find that the Commission’s order was not supported by substantial evidence and was contrary to the manifest weight of evidence. We therefore reverse the chancery court’s judgment and remand the case to the Commission.

FACTS AND PROCEDURAL HISTORY

¶ 3. On February 10, 2006, TESI filed a notice of intent to change its water service rates presently on file with the Commission.1 The Commission recognizes that TESI followed all procedural requirements of notice and filing, and states that “no appeal is taken regarding notice, pre-hear-ing or hearing rules.” TESI requested a flat-rate increase of $26.19 per month, which would bring a residential customer’s monthly water rate from $19.80 to $45.99. They also requested a metered rate increase of $18.59 for the first 2,000 gallons, $2.32 for every 1,000 gallons between 2,001 and 5,000, and $2.66 for every 1,000 gallons over 5,000 gallons, which would bring the metered rates to a total of $32.59, $4.07, and $4.66 respectively. Part of the utility rate docket includes “pre-filed testimony,” which consists of questions prepared and reviewed by counsel and answered by a witness in written form. This pre-filed testimony can include tables and schedules which reflect expenses and revenue relevant to the proceedings. TESI submitted pre-filed testimony and exhibits from Paul E. Maeder, the chief executive officer of TESI, and Gary D. Shambaugh, a paid third-party financial consultant, to support the rate increase. TESI’s last rate proceeding was in 2001, shortly after it obtained the sewerage and water properties from the Johnson Properties, Inc., bankruptcy proceedings.

¶ 4. On February 15, 2006, the Commission suspended the filing and requested that the Public Utilities Staff (“Staff’) conduct a full investigation of the proposed rates and charges set forth in TESI’s Notice of Intent. The Staff is an independent state agency, separate from the Mississippi Public Service Commission, established by the Mississippi Legislature to investigate utility filings in order to ensure that the interests of all parties are served. Miss.Code Ann. § 77-2-1 (Rev.2000). The Staff conducted a three-month investigation of TESI’s proposed rate increase and reviewed more than one hundred data request responses. As a result of the investigation, the Staff and TESI entered into and filed with the Commission a stipulation altering the amount of the proposed rate increase. The Staff and TESI stipulated and testified at a hearing that an increase in the monthly flat rate to $36.00, and an increase in the monthly metered rate to $25.50 for the first 2,000 gallons, $3.18 for every 1,000 gallons consumed between 2,001 and 5,000, and $3.64 for every 1,000 gallons over 5,000 gallons was just and reasonable for both TESI and its customers. Also, per discussion held on April 26, 2006, at a prehearing conference, TESI agreed to remove all Katrina-related ex[374]*374penses from the present rate case, and those expenses were removed.2

¶ 5. The consolidated hearings on TESI’s water and sewerage filings were held on May 16, 2006. Intervenors by order of the Commission included: Jour-dan River Shores Property Owner’s Civic Association, Inc. (“Jourdan River Shores”); Barry I. Fox; Windance Property Owners Association (“Windance”); Lake Village Property Owners Association (“Lake Village”); Ray Boudreau; and the Jackson County Board of Supervisors. In addition to TESI and the Staff, representatives from SunUp Limited Partnership,3 Win-dance, Lake Village, North Ridge Subdivision, Oak Grove Subdivision, and the Mississippi Department of Environmental Quality appeared at the hearing, along with public witnesses. Testimony regarding the proposed water rates was given by Paul E. Maeder, CEO of TESI; Gary D. Shambaugh, Vice President of AUS Consultants, Inc.; and public witnesses Thomas L. Price and Joe Leopold.

¶ 6. On August 1, 2006, the Commission entered an order denying the proposed and stipulated rates, and instituted a monthly flat rate of $27.00, an increase of approximately $7.00. The order also imposed a mandatory flat rate on all of TESI’s customers, to remain in effect for a period of five years, regardless of TESI’s present or future ability to provide metered rates. On August 25, 2006, TESI filed its notice of appeal with the Chancery Court of Jackson County. On February 13, 2007, a hearing was held in relation to TESI’s appeal, and on February 26, 2007, the chancery court issued a ruling affirming the Commission’s Order. The final order was entered on March 20, 2007.

¶ 7. The issue on appeal is:

WHETHER THE COMMISSION’S DENIAL OF THE STIPULATED RATE INCREASE BETWEEN TESI AND THE STAFF IS SUPPORTED BY SUBSTANTIAL EVIDENCE.

STANDARD OF REVIEW

¶ 8. The Court may hear and dispose of the appeal in termtime or vacation and the Court may sustain or dismiss the appeal, modify or vacate the order complained of in whole or in part, as the case may be. In case the order is wholly or partly vacated the Court may also, in its discretion, remand the matter to the Commission for such further proceedings, not inconsistent with the Court’s order as, in the opinion of the Court, justice may require. The order shall not be vacated or set aside either in whole or in part, except for errors of law, unless the court finds that the order of the Commission is not supported by substantial evidence, is contrary to the manifest weight of the evidence, is in excess of the statutory authority or jurisdiction of the Commission, or violates constitutional rights.

White Cypress Lakes Water, Inc. v. Miss. Pub. Serv. Comm’n, 703 So.2d 246, 248 (Miss.1997) (citing Miss.Code Ann. § 77-3-67 (Rev.2000)).

DISCUSSION

¶ 9. TESI argues that the Commission’s denial of the water rate stipulated by the Staff and TESI is unsupported by substantial evidence. Mississippi Code Annotated Section 77-3-59 (Rev.2000) states that “[t]he commission shall make and file its findings and order, and its opinion, if any. All findings shall be sup[375]*375ported by substantial evidence presented and shall be in sufficient detail to enable the court on appeal to determine the controverted questions presented, and the basis of the commission’s conclusion.”

¶ 10. The Commission points out that this Court has held an order of the MPSC to be presumptively valid. State ex rel. Pittman v. Miss. Pub. Serv. Comm’n, 538 So.2d 387, 394 (Miss.1989). Also, the “reasonableness of public utility rates is not determined by definite rules and legal formulas, but is a fact question requiring the exercise of sound discretion and independent judgment in each case.” Id.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
988 So. 2d 372, 2008 Miss. LEXIS 337, 2008 WL 2522510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/total-environmental-solutions-inc-v-mississippi-public-service-miss-2008.