DE 97-255 BIRCHVIEW BY THE SACO, INC. Investigation into Quality of Service and Continued Utility Status Order Extending Receivership O R D E R N O. 23,105 January 12, 1999 I. BACKGROUND On August 3, 1998, the New Hampshire Public Utilities Commission (Commission) placed Birchview by the Saco, Inc. (Birchview or the utility), a water utility providing service to approximately 110 customers in a limited area of the Town of Bartlett, under the receivership of FX Lyons, Inc., the system's operator, for thirty days pursuant to the provisions of RSA 374:47-a. Order No. 22,992 (August 3, 1998). This action was taken without hearing based on a memorandum of Commission Staff indicating that there was a "serious and imminent threat to the health and welfare of customers of the utility . . . ." RSA 374:47-a. On August 18, 1998, the Commission held a duly noticed hearing to determine whether the utility should remain in receivership. At that hearing the Commission heard testimony from Francis Lyons, the principal of FX Lyons, Inc., and Douglas Brogan, P.E., the Commission's Water Engineer. Mr. Brogan's and Mr. Lyon's testimony generally revealed that the water system was in poor condition and could fail at any time with the loss of the one remaining pump. They also testified that: 1) FX Lyons, Inc. and a number of others that had provided services to the utility had not been paid by the utility; 2) the State of New Hampshire, Department of Environmental Services (DES) would no longer accept monthly water samples for bacteriological testing without first being paid because the utility owed DES over a thousand dollars for earlier testing it had provided; 3) the system was slowly deteriorating and major capital investments would be required to maintain a viable water supply and distribution system in the near future; 4) the system was experiencing numerous leaks because of its age and construction, and that the system had a number of "significant deficiencies", as determined by DES, which had never been addressed. Based on this testimony, the Commission placed the utility under receivership for a period of 90 days to ensure that customers received safe and adequate service that did not threaten their health or safety. Order No. 23,002 (August 31, 1998). The Commission also urged the utility's customers to attempt to come to agreement concerning the available options for future water service to their community and directed Staff to conduct an informational meeting in the town of Bartlett to advance that end. The informational hearing was held on October 17, 1998 at the VFW Hall in Bartlett, New Hampshire. According to Staff, presentations of available options and cost estimates for the future of the water distribution system were made by Commission Staff, representatives of DES, Birchview customers Karen and George Weigold (Weigolds), the Lower Bartlett Water Precinct. (Precinct). Staff also presented a brief cost overview of different options prepared by the North Country Council (NCC). On November 17, 1998, a hearing was held to review the status of the receivership, customer progress towards a permanent resolution to the water supply needs of the community and the need to continue the existing receivership. Moreover, since the November 17, 1998 hearing the Commission has received correspondence from two customers concerning their positions with regard to the future of this water utility. At the November 30, 1998 meeting the Commission orally extended the receivership previously approved by the Commission for another 60 days, scheduled a technical session for January 14, 1999, and a hearing for January 20, 1999 to address the merits of the future of this utility. Thus, receivership was continued until January 29, 1999, with this order to follow. II. POSITIONS OF THE PARTIES A. Commission Staff Staff Engineer Brogan reiterated the position he set forth at the August 18, 1998 hearing, testifying that the water distribution system was in a state of significant deterioration and that it would "conservatively" cost approximately $165,000 to bring the system up to "bare bones" state and federal standards. He further testified that this would not address all of the long- term capital improvements that would be required immediately or in the near future. Mr. Brogan also presented a similar analysis prepared by NCC which supported these conclusions. B. George Weigold Mr. Weigold, a resident and customer of Birchview and a self employed general contractor that has performed work on the system, testified that the system could be repaired for a fraction of the cost estimated by Mr. Brogan, Mr. Lyons and NCC. Mr. Weigold requested that the receivership be continued for 60 days and requested that Commission Counsel provide him with an opinion regarding the effect and enforceability of certain provisions contained in some customers' deeds. C. FX Lyons, Inc. Mr. Lyons testified regarding the poor conditions of the books and records of the utility which kept him from verifying and consequently paying any of the back debts of the utility. He further indicated a willingness to continue as receiver. D. Birchview Homeowners Association By letter dated November 12, 1998, the Board of Directors of the Homeowners Association informed the Commission that it had voted 6-2 in favor of transfer of the water system to the Precinct. The Board also expressed concern over the inability of the Association and the customers in general to reach consensus concerning the future of their water system. The Board also requested that the Commission conduct an independent poll of the customers to determine the overall preference of the community. Following the hearing, the Commission received correspondence from T.M. Egbert and James E. Richard, customers of the water system. Both Mr Egbert and Mr. Richard requested that the Commission issue an order providing for the interconnection of the Birchview system with the Precinct. III. COMMISSION ANALYSIS The issue for our consideration is whether the receivership of this water utility under RSA 374:47-a should continue, and if so, what conditions should be placed on the receivership. When the Commission placed this utility under its receivership it specifically noted that receivership was not a long-term solution to the utility's or the customers' problems. Rather, the Commission noted that receivership was a temporary measure taken to provide this utility and, more importantly, its customers, an opportunity to come to a mutually acceptable long-term resolution for the provision of water service to the community. Order No. 23,002 (August 31, 1998). The Commission went on to note that, [i]n the event customers are unable to reach a reasonable resolution concerning the future of this water supply and distribution system, we will determine what is in the public interest for the future of this water utility and implement that course of action. See e.g., RSA 374:30. Order No. 23,002 at 10. It is apparent from the hearings in this matter and the correspondence that we have received that the customers cannot come to a mutually agreeable resolution concerning the future of water service to their community. It is also apparent that disagreement over the future of the water distribution system is having a negative and divisive effect upon the community. Thus, we shall conduct a hearing to determine what options are available to provide water service to the community and which option best serves the public interest. In our oral deliberations we continued the receivership for sixty (60) days and set the dates of January 14, 1999 and January 20, 1999, respectively, for a technical session and a hearing on the merits. Since those deliberations we have learned that Mr. Lyons, the principal of the system operator, is unavailable on those dates. Because his input into this decision would be valuable, we will reschedule the technical session for February 4, 1999 and a hearing on the merits at 10:00 am on February 16, 1999. Any testimony that is proposed to be given at the hearing should be prefiled with the Commission on or before February 3, 1999. Consequently, the receivership shall continue until we have issued a decision following the hearing. Based upon the foregoing, it is hereby ORDERED, that Birchview by the Saco, Inc. shall remain under the receivership of FX Lyons, Inc. until an order issues following the hearing set for February 16, 1999. By order of the Public Utilities Commission of New Hampshire this twelfth day of January, 1999. Douglas L. Patch Susan S. Geiger Nancy Brockway Chairman Commissioner Commissioner Attested by: Thomas B. Getz Executive Director and Secretary