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ELKINS -- "We have them thinking," Elkins Mayor Jerry Marco said during the March 20 City Council meeting after speaking twice with the state Public Service Commission about the Whitmer water system situation.
Marco explained to council that he had recently been in Charleston to testify on several pieces of legislation. This included House Bill 3179, put forth by Delegate Jonathan Kyle, R-District 66, which would amend and reenact a section of the Code of West Virginia that deals with the PSC and distressed and failing utilities
HB 3179 would keep "an acquiring company from being forced into financial hardship" by the PSC. The bill has two co-sponsors.
"I told the story of everything we've gone through and the fact that we have received an order that we cannot fulfill because of the outstanding liens. We can never purchase (Whitmer's water utility) or obtain this property," Marco said. "So there's no way we can fulfill that obligation."
In 2023, Elkins was ordered by the PSC to take over the distressed Whitmer water utilities, an unwanted acquisition that, Marco said, costs the City of Elkins around $6,000 a month. While Elkins does operate the Whitmer water utility, they do not own it.
The Whitmer utility has approximately 94 customers, City Attorney Geraldine Roberts said, and Elkins is having to pay the difference between what it costs every month to operate the Whitmer water plant and how much money is collected from Whitmer customers. Officials said it takes 144 Elkins customers, at a minimum bill, to fund the difference.
Marco explained that during his time in Charleston, while he was testifying, he questioned if Elkins were to use enterprise funding for a property they don't own outside of city limits, is that a violation.
"I was told by the Chair (of the PSC) that we probably shouldn't be using that, and I said, 'However, it's illegal to use general funding, so what am I supposed to do?'" Marco said. "And she looked at their attorney and the attorney went, 'I don't know.'"
Roberts said Elkins has tried to find every possible way of funding the operation of the Whitmer water plant, including reaching out to the state Water Development Authority. However, Roberts noted the Authority only receives $5 million per year, and the next two fiscal years of that funding have already been committed to different projects around the state.
Despite asking multiple questions during his testimony, Marco said he didn't feel like he got a lot of answers. The mayor also asked what the penalty would be if the city refused the order.
"I was told by their attorney that they have authority," Marco said. "I said, 'OK, can you please explain what your authority is?' and I really didn't get an answer, but I was told, 'Well we've never really been in this situation before,' and, this may alarm you guys, but I said, 'You know what, sometimes I like to be a pioneer and be the first one, so we may see how this works out.'"
Marco said that, after his testimony, the PSC requested a meeting with him for March 19, which Marco said was "productive" and "great." The mayor said the PSC admitted that the current law that involves distressed utilities as it stands is flawed and is willing to work with the city to change parts of the law.
Roberts also informed council that Marie Prezioso, the executive director of the state Water Development Authority, was also very interested in Elkins' issue with Whitmer, and the recent discovery that Elkins could be asked to take over Harman's water utility, something Elkins officials want no part of.
"In fact, Ms. Prezioso was totally surprised when she heard that," Roberts said. "Said, 'What's that about?'"
"She was not happy," Marco added.
"She didn't know anything about that," Roberts said.
Roberts said Steve Buchanan, an engineer who had been working in both Whitmer and Harman, had been contacted by Kathy Emery, the West Virginia Department of Environmental Protection's Clean Water State Revolving Fund loan program manager. Emery informed Buchanan that they were looking at Elkins ultimately running both Whitmer and Harman's water utilities, Roberts said.
"(Emery) contacted Mr. Buchanan, because he's been working on these projects for Whitmer and Harman, and basically has said, 'Well, we'd like to look at a combination of Whitmer and Harman, and, eventually, Elkins is going to run the whole show,'" Roberts told council during the March 6 meeting.
A court case involving the PSC and distressed utilities is before the West Virginia Supreme Court of Appeals that city officials are watching closely.
During the Nov. 7 City Council meeting, the council moved to file an Amicus Curiae (friend of the court) brief in support of the Huntington Sanitary Board's appeal to the West Virginia Supreme Court of Appeals against the PSC
Huntington is appealing against the PSC's order that the Huntington Sanitary Board take over an abandoned subdivision known as "Hubbard Heights," which only has around 40 customers. Huntington had previously filed a petition for reconsideration which was denied by the PSC.
Elkins officials hope that, if Huntington is successful in their appeal, Elkins will be able to approach the PSC on reopening the matter of Elkins' acquisition of Whitmer Water.
The Hubbard Heights case was argued before the court on March 18 and, Roberts said, there was another PSC-related case that was argued just before Hubbard Heights regarding a very similar issue. Roberts said she believed this was helpful.
"I think, when you have two cases that have similar issues with the same law that is being applied by the Public Service Commission, it ought to get those justices' attention," Roberts told council on March 20.
Roberts said the Supreme Court of Appeals could issue a ruling on the Hubbard Heights case between now and June.