Through this original proceeding, Wetzel County Solid Waste Authority (hereinafter referred to as the Authority) seeks a writ of mandamus to compel the West Virginia Public Service Commission (PSC) to enforce its final order denying a certificate of need to Lackawanna Transport Company (Lackawanna). Upon our careful review of this matter, we determine that the PSC has failed to take the necessary action to enforce its order of August 19, 2005, which denied Lackawanna's application for a certificate of need to operate a sewage sludge composting facility. Although it has both statutory authority and an obligation to compel obedience to its lawful orders, the record in this case amply demonstrates that the PSC has failed to exercise its enforcement rights with regard to this matter. Accordingly, we grant the requested writ and direct the PSC to issue a cease and desist order with regard to Lackawanna's operation of a sewage sludge composting facility.
Lackawanna appealed the May 9, 2003, decision of the PSC requiring it to obtain
a certificate of need. This Court, in deference to the PSC's decision to allow Lackawanna to
operate its sewage sludge composting facility while seeking the required certificate of need,
deferred ruling on the appeal pending a decision by the PSC on the certificate of need
application. By ruling entered on August 19, 2005, the PSC denied the application for a
certificate of need. (See footnote 7) On November 10, 2005, the PSC refused Lackawanna's request for
reconsideration of its ruling. By order entered February 28, 2006, this Court refused to accept
the appeal sought by Lackawanna from the PSC's final decision denying it a certificate of need.
The Authority filed a petition with this Court on December 12, 2005, through which it sought a writ of mandamus directing the PSC to issue a cease and desist ruling based on Lackawanna's illegal operation of a composting sewage sludge facility without the requisite certificate of need. This Court, by order entered on March 2, 2006, issued a rule to show cause as to why mandamus should not be imposed against the PSC. During the pendency of this proceeding, the West Virginia Department of Environmental Protection (DEP) issued an order on May 8, 2006, directing that Lackawanna cease and desist acceptance of sewage sludge for composting within ten days of the issuance of that order. (See footnote 8)
This Court will utilize the mechanism of a writ of
mandamus as extraordinary relief when a public officer or body
has failed in the performance of a mandatory, non-delegable duty.
'Mandamus is a proper remedy to require the performance of a
nondiscretionary duty by various governmental agencies or
bodies.' Syllabus Point 1, State ex rel. Allstate Insurance Co. v.
Union Public Service District, 151 W.Va. 207, 151 S.E.2d 102
(1966). Syl. Pt. 4, State ex rel. Affiliated Constr. Trades
Found. v. Vieweg, 205 W.Va. 687, 520 S.E.2d 854 (1999). To
entitle one to a writ of mandamus, the party seeking the writ must
show a clear legal right thereto and a corresponding duty on the
respondent to perform the act demanded.' Syl. Pt. 2, State ex
rel. Cooke v. Jarrell, 154 W.Va. 542, 177 S.E.2d 214 (1970).
Syl. Pt. 1, Dadisman v. Moore, 181 W.Va. 779, 384 S.E.2d 816
212 W.Va. at 431, 573 S.E.2d at 342.
Against these standards, we proceed to consider whether a writ of mandamus should issue to require the PSC to utilize its enforcement powers to compel obedience to its rulings with regard to Lackawanna's illegal operation of a commercial composting facility. (See footnote 9)
The Public Service Commission was created by the
Legislature for the purpose of exercising regulatory authority
over public utilities. Its function is to require such entities to
perform in a manner designed to safeguard the interests of the
public and the utilities. Its primary purpose is to serve the
interests of the public. Boggs v. Public Service Commission,
154 W.Va. 146, 174 S.E.2d 331 (1970).
As we recognized in Town of Fayetteville,
[t]he PSC's jurisdiction is further derived from West Virginia Code § 24-2-7(a) (1979) (Repl. Vol. 2001), which provides:
Whenever, under the provisions of this chapter, the [PSC] shall find any regulations, measurements, practices, acts or services to be unjust, unreasonable, insufficient or unjustly discriminatory, or otherwise in violation of any provisions of this chapter, or shall find that any service is inadequate, or that any service which is demanded cannot be reasonably obtained, the [PSC] shall determine and declare, and by order fix reasonable measurements, regulations, acts, practices or services, fix to be furnished, imposed, observed and followed in the state in lieu of those found to be unjust, unreasonable, insufficient, or unjustly discriminatory, inadequate or otherwise in violation of this chapter, and shall make such other order respecting the same as shall be just and reasonable.
212 W.Va. at 432, 573 S.E.2d at 343 (emphasis supplied).
The Legislature expressly added to the PSC's jurisdictional basis in 1988, giving the administrative agency authority to establish rates charged by commercial solid waste facilities and make rules governing the transportation of solid waste. See W.Va. Code § 24-2- 1b (2000) (Repl. Vol. 2004). At the same time the Legislature established this expanded rate making authority, it enacted a separate statute requiring that:
(a) Any person applying for a permit to construct, operate
or expand a commercial solid waste facility as defined in section
two [§ 22-15-2], article fifteen, chapter twenty-two of this code,
or any person seeking a major permit modification for a
commercial solid waste facility from the division of
environmental protection first shall obtain a certificate of need
from the public service commission.
W.Va. Code § 24-2-1c(a) (1998) (Repl. Vol. 2004). The parties did not dispute (See footnote 15) below that the PSC had certificate of need jurisdiction over commercial solid waste facilities such as Lackawanna under the 1998 reenactment of West Virginia Code § 24-2-1c(a).
The provisions of West Virginia Code § 24-2-1c expressly delineate the grounds upon which the PSC is mandated to deny an application for a certificate of need requested by a solid waste facility such as Lackawanna. Under West Virginia Code § 24-2-1c(d), one of the six grounds which compels the PSC to refuse to issue a certificate of need for a solid waste authority is: The location is inconsistent with any applicable county or regional solid waste management plan. W.Va. Code § 24-2-1c(d)((3). Because the Authority found the Lackawanna facility to be inconsistent with its solid waste management plan, the PSC was required to deny Lackawanna the requested certificate of need.
While acknowledging that the PSC has enforcement powers under West Virginia Code § 24-2-2, Lackawanna argues that the statutory language establishing those powers is permissive, rather than compulsory. At issue is the language which provides that [t]he commission may compel obedience to its lawful orders by mandamus or injunction or other proper proceedings in the name of the state in any circuit court having jurisdiction of the parties or of the subject matter. . . . W.Va. Code § 24-2-2. Based on the use of the term may rather than shall, Lackawanna contends that the enforcement powers provided in this statutory provision can not be viewed as mandatory in nature.
In syllabus point seven of Weil v. Black, 76 W.Va. 685, 86 S.E. 666 (1915), however, we interpreted this statutory language to be mandatory:
Where the public service commission has, upon proper
evidence and after due consideration, made an order prescribing
certain rates to be charged for services to be rendered by a public
service corporation, it is the official duty of the individual
members of such commission to compel obedience to such
order, if it be not obeyed, by instituting proper proceedings in
In a similar vein, this Court determined that the PSC had no discretion with regard to compelling the collection of tolls on its bridges, as then required by law:
In discharging the functions required by the statute of its creation and subsequent related acts, the Public Service Commission is dealing with instrumentalities that certainly affect the public interest and welfare in many vital ways, and we believe it is quite apparent, even though the legislative purposes are not expressed in its enactment relating to the Commission's duties, that the expeditious and prompt exercise of its powers is a necessarily implied requirement. The Commission is an administrative body whose duties demand the exercise of quasi judicial functions. It has no arbitrary discretion, so that its powers are not to be exercised in a manner that is controlled by what, in its judgment, the expediency of the situation with which it is confronted requires.
Village of Bridgeport, Ohio, v. Public Serv. Comm'n, 125 W.Va. 342, 347, 24 S.E.2d 285,
287 (1943) (emphasis supplied).
Relying on these two decisions of the Court, (See footnote 16) the Authority argues that the PSC has no discretion to refrain from exercising its enforcement powers with regard to duly issued rulings. We agree. The language of West Virginia Code § 24-2-7(a) makes clear that upon a determination that any act is in violation of any provision of this chapter, the PSC is compelled to take action to force compliance with the governing statutory provisions. Moreover, this Court has previously made clear that the language of West Virginia Code § 24- 2-2, which permits the PSC to seek enforcement of its lawful orders through mandamus or injunctive relief, is to be applied in an obligatory fashion. See Weil, 76 W.Va. 685, 86 S.E. 666; accord Village of Bridgeport, Ohio, 125 W.Va. 342, 347, 24 S.E.2d 285, 287. Based on our recognition in Weil that the duties of the PSC are ministerial with regard to compelling obedience to its own orders, we reject the PSC's argument that its enforcement powers are discretionary in nature and therefore not properly the subject of a mandamus action. 76 W.Va. at 692, 86 S.E. at 669.
We recognize that the PSC, in failing to initially enter a cease and desist order as part of its May 9, 2003, ruling, took into consideration the economic impact that the closing of the Lackawanna facility might have on the local economy. As a tribunal charged with upholding the rule of law, however, our concern in this case is to identify the law applicable to the dispute before us, that is, the extent of the duties and enforcement powers granted by the Legislature to the PSC and to see that the PSC complies with its statutorily-prescribed duties.
Having determined that the PSC has issued a lawful order finding Lackawanna to be operating illegally but refrained from exercising its compulsory enforcement obligations with regard to its lawful order, we determine that a writ of mandamus shall issue directing the PSC to immediately issue a cease and desist order with regard to the Lackawanna commercial composting facility. (See footnote 17) And, if Lackawanna fails to comply with the terms of the cease and desist order, the PSC shall institute proper proceedings to enforce the terms of the order. See W.Va. Code § 24-2-2; Weil, 76 W.Va. at 686, 86 S.E. at 666, syl. pt. 7.