20210428Comments.pdf

JOHN R. HAMMOND, JR.
DEPUTY ATTORNEY GENERAL
IDAHO PUBLIC UTILITIES COMMISSTON
PO BOX 83720
BOISE, IDAHO 83720-0074
(208) 334-03s7
IDAHO BAR NO. 5470
vs.
Street Address for Express Mail:
I 1331 W CHINDEN BLVD, BLDG 8, SUITE 2OI-A
BOISE, ID 83714
Attorney for the Commission Staff
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
WESTERN AIRCRAFT, INC.,
CASE NO. SUZ.W.21.O1
COMPLAINANT,
COMMENTS OF THE
COMMISSION STAFF
SUEZ WATER IDAHO INC.
RESPONDENT.
The Staff of the Idaho Public Utilities Commission ("Staff') submits the following
comments.
BACKGROUND
1. Western Aircraft, Inc., Complaint
Westem Aircraft, Inc., ("Western") receives water service from SUEZ Water Idaho Inc.
("SUEZ") at its existing airplane hangar ("Hangar l") on the south side of the Boise Airport.
Complaint at I and 3. Westem states it is building a new, larger hangar ("Hangar 0") that will be
separated from Hangar I by a "covered Walkway" (the "Walkway") that is 46 feet long and 15
feet 8 inches wide. Id. at 3. Western contends the Walkway is in a former right of way of the
abandoned Boeing Street and contains the water main and sewer line from which Hangar I
receives service. Id. at3-4.
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ISTAFF COMMENTS APRIL 28,2021
Western claims its maps did not correctly show the water line locations and depths and
that the water main and sewer lines under the Walkway are inadequately separated. Id. at 4.
Western claims it proposed a revised water-connection plan for Hangar 0 that met all Idaho
Department of Environmental Quality ("IDEQ") water, sewer and fire line location, separation
and crossing requirements on August 20,2020. 1d. Western asserts SUEZ has unreasonably
wittrheld its approval of Westem's proposal. /d. Westem also claims it requested "Commission
mediation" of its disputes with SUEZ, through which it received a second proposed water-
connection solution in a September l, 2020 letter from Staff. 1d. Western claims SUEZ also has
unreasonably withheld its approval of this second proposal. ^Id.
Western asserts it obtained, at SUEZ's suggestion, an IDEQ conditional water line
separation variance that would permit the water line to be placed under the Walkway. 1d.
Western alleges SUEZ then changed course and unreasonably withheld its cooperation. Id.
Western requests that the Commission order SUEZ:
1. To allow a temporary water connection to Hangar 0 from the existing Hangar 1
water line pending the final resolution of this matter.
2. To negotiate in good faith with Westem by:
a. providing the requested comparative cost estimates for different proposals;
and either
b. approving the revised connection plan; or
c. indicating which proposed alternative solution will work without charging
excessive costs to Western.
3. To not charge Western excessive, unreasonable, and discriminatory fees, nor to
bear any costs to upgrade or relocate SUEZ's own water mains on or adjacent to
Western's rented real property.
Id. at 6-7.
Westem states "[a] formal hearing herein is requested, if necessary, to seek the relief,
obtain water service and avoid the damages described herein. Id. at7.
2. SUEZ
SUEZ asserts Western wants to place the Walkway, what it calls a permanent building
with walls---directly above a water main. SUEZ Answer to Western Aircraft's Formal Customer
Complaint at l-2. SUEZ alleges this would put its water system out of compliance with IDEQ
2STAFF COMMENTS APRIL 28,2021
rules. /d at2; see also ldaho Rule for Public Drinking Water Systems 542.11, IDAPA
58.01.08.542.1 l. SUEZ asserts it will work with Western to identift solutions, but Westem must
refrain from construction that will place SUEZ's system out of compliance with IDEQ's rules.
Id. at2-3. SUEZ asserts placing the Walkway on top of the water main would prevent it from
accessing, maintaining, and repairing the water main, and create the potential for damage to
Western's structure and surrounding structures. Id. SUEZ asserts that the Commission should
not order SUEZ to provide water service if a customer chooses to construct a building that
creates these problems. Id. at3.
SUEZ states it has worked with Western in good faith and will continue to work with
Westem to ensure Western's proposal complies with applicable rules while allowing SUEZ
sufficient access to maintain and repair its water system. Id. at3 and I l.
SUEZ also states the Commission should not require it to provide cost estimates for work
that Western may or may not need to perform to ensure that Western's proposal complies with the
rules. 1d at 12.
SUEZ denies that the August 20,2020, plan proposed by Western's engineers complies
with applicable rules. Id. at 13. SUEZ alleges that Western acknowledged that its proposal does
not comply with the rules by requesting a waiver from those rules, which was denied by IDEQ
(contrary to Western's assertion that a variance was granted). Id.
Suez submits that the Commission should not endorse any particular "proposed alternative
solution" to Westem's dilemma because IDEQ, not the Commission, interprets and administers
the rules of public drinking water systems. 1d. However, if the Commission is inclined to select
an alternative, SUEZ requests that the Commission determine with specificity which party must
pay for the components of any proposed water line solution. Id. at 14.
SUEZ states that Western has not alleged or proven any discriminatory treatment by
SUEZ. Id. at 14. SUEZ asserts developers' plans must comply with IDEQ and other rules and
allow SUEZ to access, repair, and maintain its water system. Id. SUEZ alleges Western is
responsible for any costs needed to construct its project, including any costs needed to ensure
that its project does not detrimentally impact water service to Western or other customers. ./d.
SUEZ also denies that any relief is necessary and proper based on the Complaint. Id at
14. SUEZ denies that a formal hearing is required or needed in this case. However, SUEZ
would not object to a hearing if the Commission determines one is necessary. Id. at 14.
3STAFF COMMENTS APRIL 28,2021
STAFF'ANALYSIS
l. The Walkway
The crux of the Western/SUEZ dispute is whether domestic water service can be
provided to Hangar 0 and if an existing water main can be covered by the Walkway. The
Walkway would be a fully enclosed structure according to Western. See Complaint at 3 and
Exhibit A to the Complaint at page l. The existing water main provides water service to Western
and other customers.
Based on the record in this case, Staffbelieves the Walkway is a permanent structure in
commonly understood terms. As a result, Staff believes IDEQ Drinking Water Rule 542.I I
would prohibit the Walkway from being built over the existing water main if it is continued to be
used to provide domestic water service and fire flows. Due to Rule 542.1I applicability to this
matter, IDEQ is the agency who would need to decide whether a fully enclosed Walkway built
over the existing water main is allowable in the first instance. The record in this case
demonstrates that IDEQ has not granted a waiver of Rule 542.11's requirement. See Answer at
7; see also Exhibit 4, (October 7 email from IDEQ official denying the requested waiver).
Further, Staffagrees with SUEZ that placing a fully enclosed structure over the existing
water main would be problematic. The existing water main currently provides domestic water
service to Western's Hangar 1 and fire flows to other customers in this area. Staff believes that a
fully enclosed structure on top of a water main could prevent SUEZ from easily, quickly, and
safely accessing the water main as necessary to conduct repairs, maintenance, and other
activities. In an emergency, the Walkway's obstruction to access the existing water main could
delay actions that could maintain service to Hangar I and/or negatively impact fire flows.
Further, accessing the water main under the Walkway could also create a risk of damage to
Western's structures or airport property-if the water main ruptures and SUEZ cannot quickly
access the main location of the breach. Staff notes that workers associated with the construction
of Hangar 0 breached the existing water main three times, on August 10, September 10, and
October 6,2020. Exhibit 5 to SUEZ's Answer is a copy of a photograph showing the third water
main breach and associated damage. Based on the foregoing and concem related to potential
liability on the part of SUEZ, Staff now does not believe that constructing the Walkway over the
existing water main is a workable solution. If the Walkway is built, Staff now believes the
existing main between Hangar I and Hangar 0 would need to be abandoned and relocated.
4STAFF COMMENTS APRIL 28,2021
2. Proposed Settlement Agreement
Western, SUEZ, and Staff ("Parties") have negotiated a possible solution to the dispute
which was finalized and executed on the same date as the comment deadline for Staff. The
proposed settlement agreement ("Settlement Agreement") would allow Westem to receive
domestic water service and required fire flows to Hangar 0 in conformance to IDEQ
requirements based upon certain conditions:
o Western would not construct the Walkway at this time.
o If Western chooses to construct the Walkway later, Westem must provide notice
to SUEZ and Staff at least ninety (90) days before construction begins. The
parties agree to discuss, in good faith, options for constructing the Walkway that
comply with all applicable rules and regulations, and that allow SUEZ to access
its water system for, among other things, repair and maintenance. Western shall
not begin construction of the Walkway without SUEZ's written consent. The
water service provided shall be terminated if Western constructs the walkway
without SUEZ's written consent.
o Prior to receiving water service Western shall:
o Conform the northern area sewer line crossing location to DEQ separation
standards at Western's cost.
o Inspect the South sewer line connection's separation to confirm its placement and,
if needed, also conform that to IDEQ standards at Western's cost.
o Install an approved backflow device on the fire tank supply line at Western's cost.
. Upon execution of the Settlement Agreement SUEZ will begin preparations for the
connection to domestic service so that water service to Hangar 0 can be promptly
provided after Commission approval of such an agreement; and,
o As soon as possible after the Commission's approval of this Settlement Agreement
and upon SUEZ's confirmation that the construction described in paragraph 9 above
has been completed, SUEZ agrees to provide water service to the newly constructed
facility identified as Hangar 0, with a target date of May 15,2021.
. Upon the approval of this Settlement Agreement by the Commission without change
or condition, Western Aircraft shall dismiss the Complaint.
5STAFF COMMENTS APRIL 28,2021
Staff believes the Settlement Agreement represents a reasonable resolution of the dispute
between SUEZ and Westem.
3. Cost Responsibility for Improvements if the Walkway is Built.
The Parties have not reached an agreement on the improvements or relocation plan of the
existing main or associated cost responsibilities if the Walkway is built. Absent an agreement on
this matter in this case, Staff believes that if the Walkway is built and improvements with main
relocation are needed to maintain domestic water service and fire flows for Western and other
customers, Western should be responsible for paying the associated incremental costs.
Relocation of the existing main could be accomplished with an upgrade to other mains on the
south side of the airport. See Exhibit 2 to the Answer. Absent building of the Walkway,
upgrades are not required. Staff recommends cost causer principles be followed, making
Western responsible for the incremental cost of any upgrades or relocation to continue service
and fire flows to other existing customers.
STAFF RECOMMENDATION
Staff recommends approval of the Settlement Agreement.
If the Commission does not approve the Settlement Agreement, Staff recommends that
the Commission deny Westem's request for domestic water service using the existing main if the
Walkway is built over it.
)dT- or Aprit2o2rRespectfully submitted this
Technical Staff: Michael Morrison
Chris Hecht
Kevin Keyt
i : umisc/comments/suzw2 I . ljhmmkskcwh comments
J ,Jr
ttomey General
6STAFF COMMENTS APRIL 28,2021
CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT I HAVE THIS 28TH DAY OF APRIL 2021,
SERVED THE FOREGOING COMMENTS OF' TI{E COMMISSION STAFF, IN
CASE NO. SUZ-W.2l-OI, BY E.MAILING A COPY THEREOF TO THE
FOLLOWING:
DAVID H LEROY
ATTORNEY AT LAW
802 W BANNOCK ST STE 2OI
BOISE TD 83702
E-MAIL: [e-mail]
MARSHALL THOMPSON
SUEZ WATER IDAHO INC
8284 W VICTORY RD
BOISE ID 83709
E-MAIL : [e-mail]
PRESTON N CARTER
BLAKE W RINGER
GIVENS PURSLEY LLP
POBOX2720
BOrSE rD 83701-2720
E-MAIL: prestoncarter@ givenspursley.com
[e-mail]
SECRETAR
CERTIFICATE OF SERVICE