Edited by Tony Rutherford from Multiple Reports
WV Supreme Court Hears Steel of WV Arguments Over  "Creative Decoupling of Facts Designed to Confuse" by Huntington Sanitary Board, City Council
File Photo: WV Supreme Court (website)

The West Virginia Supreme Court heard oral arguments Oct. 31 on Steel of West Virginia's appeal to overturn actions of the Huntington Sanitary Board and Huntington City Council at the end of 2016. At the final council meeting council approved the bond sale and rate increases 7-3, but Steel of WV contended that the HSB and city did not follow proper procedures. 

 Steel has challenged the designation of the raise as for everyday expenses. The designation reduced the public hearing and notice requirements. At arguments, Justice Menis Ketchum asked whether the "notice" issue had been "mooted," since some Steel representatives appeared at short council hearings. However, Joseph Ward told Ketchum that Steel did NOT get answers to many of its specific questions and the issues are ongoing. 

The approvals were rushed to bring the items before the outgoing City Council .

Timothy Duke, president and CEO of Steel of West Virginia, said, "I am very happy with how the oral argument went today. ... The Legislature required that public utilities provide ample notice to ensure affected citizens will have the opportunity to voice their concerns before expensive capital projects and associated large increases in sewer rates are approved. These rate increases will cost Steel of West Virginia $3 million over 10 years. Big decisions like this should not be rushed through Huntington City Council without proper consideration."

The HSB/Water Quality Board has put projects on hold pending the ruling, including renewal of the street sweeping contract. City Attorney Scott Damron has been asked to determine whether the $25,000 purchase approval by council clause relates to everyday course of business.

A rate increase is scheduled at the end of December 2017, which could be rescinded if the Supreme Court rules in Steel of WV's favor.

Steel's petition did not contain arguments regarding the citizen complaints about water cutoffs for alleged non-payments which occurred during the Spring and Summer.

 The summary of Steel of WV stated: 

The instant proceeding stems the from Respondents' efforts to circumvent West Virginia law by failing to provide the public with adequate notice of its proposed projects. The Respondents' attempts to justify these actions, and to explain the Circuit Court's holdings are a study in contradiction. According to the Huntington Sanitary Board's ("HSB"), the Public Service Commission ("PSC") has jurisdiction to hear this dispute, but may not adjudicate the crux of the dispute-Respondents' compliance with W.Va. Code § 24-2-11(1)-because the Council has plenary authority to define the statutory term "ordinary course of business." In so arguing, the HSB would have the Court ignore the plaint text of W.Va. Code §§ 24-2-1(b) and 24-2-11 (1), which neither confer jurisdiction on the PSC to hear this dispute, nor confer on Respondents the authority to determine their own compliance with West Virginia law. Accordingly, because the December 27, 2017 Ordinance would fund construction projects outside the ordinary course of business, and because it was passed without the requisite statutory notice, the Ordinance cannot satisfy judicial scrutiny. In the HSB' s view, years of administrative decisions defining the term "ordinary course of business" have suddenly become inapplicable. Applying the plain text of the statutes at issue, buoyed by mUltiple West Virginia administrative decisions, it is evident that Respondents have failed to abide by their statutory duties and so a writ of mandamus should issue to invalidate the unlawful Ordinance.

The Sanitary Board has argued that increases in sludge and burial costs --- as well as the projects --- are "ordinary" (though in millions and requiring bonding) do not require the full notice that Steel of WV argued. Steel's attorney called the HSB argument "a creative decoupling of facts designed to confuse...."


New Sanitary Board Executive Director Brian Bracey expressed confidence to  the Herald Dispatch they will prevail. But, at a meeting of the Water Quality, Sanity and Stormwater Boards following the oral arguments most business was pushed back . A legal opinion IN WRITING was asked from city attorney Scott Damron  on renewal of the street sweeping contact without taking it to Huntington City Council. 

You can read court briefs as PDF attachments below. 

  1. Reply of Steel of WV (1.44 MB)
  2. HSB / Water Quality Response (2.35 MB)
  3. Steel of WV Petition (2.29 MB)
  4. Cabell Circuit Court Order Denying Relief (616.54 KB)