IX. General Order 103
GO 103 sets forth the Commission's rules governing water service and the minimum standards for design and construction. The Scoping Memo identified compliance with GO 103 and applicable state and federal water quality standards as issues to be resolved in this proceeding. We address two issues that implicate GO 103 requirements: water quantity (including service interruptions and pipeline pressure) and water quality (including reporting obligations).
A. Water Quantity
GO 103 provides minimum standards for the quantity of water available from a utility. Section III(4) specifies that the quantity of water to be delivered to customers from all sources "be sufficient to supply adequately, dependably and safely the total requirements of all customers under maximum consumption . . . ." Additionally, the "[c]ombined flow from sources of supply and storage capacity should be adequate for four consecutive days of maximum use."
GO 103 also requires an utility to "make all reasonable efforts to prevent interruptions to service and when such interruptions occur [to] endeavor to reestablish service within the shortest possible delay consistent with safety to customers and the general public." GO 103 at § II(a)(2).
The evidentiary record discloses numerous interruptions of service, some extending for several days or weeks. The interruptions appear to result from unreliable summer well supply coupled with increased summer demand. The interruptions are so common that the railroad has contracted for stand-by service to haul water by truck from Tehachapi. Keene concedes these problems. (Keene Opening Brief at 26-27.) The evidence indicates, however, that several days may pass before a water shortage is detected by the company and substitute water arrives. Also, it is unclear whether the company has a water hauling service on stand-by or must arrange for hauling each time a shortage occurs.
Shortly before the evidentiary hearing, Keene informed its customers that the system was "experiencing a severe water shortage. . . . because ordinary demands and requirements of water consumers cannot be satisfied without depleting the water supply to the extent that there would be insufficient water for human consumption, sanitation, and fire protection." (Exhibit No. 330: Water Shortage Emergency Notice.) This notice is the company's additional admission that, without hauling water, the system is incapable of reliably supplying even minimal customer needs, much less customers' total requirements under more severe water supply periods.
In addition to this most recent event, other service interruptions support the conclusion that water supply is often inadequate. The company often is tardy in recognizing and responding to these incidents. Some residents are often without water for days during dry summer periods.
GO 103 requires adequate water pressure throughout the system. (GO 103 §§ II(3)(a) & III(4).) The testimony and DHS documents indicate that this service obligation is also frequently violated. Keene concedes that the system may have insufficient pressure to adequately serve Upper Keene residents. (Keene Opening Brief at 26.) The company has pledged to explore economic ways to increase water quantity and/or water pressure to alleviate water supply interruptions. (Id. at 27.)
B. Water Quality
GO 103 also requires that water be "wholesome, potable, in no way harmful or dangerous to health and, insofar as practical, free from objectionable odors, taste, color, and turbidity." GO 103 also requires that the utility comply with the drinking water standards of the U.S. Environmental Protection Agency and the laws and regulations of the state or local Department of Health Services. (GO 103 § II(1)(a).)
Violation of GO 103's "wholesome and potable" water quality standards was readily observed by examination of a recent water sample collected by Beard and accepted into evidence as Exhibit No. 329. The sample was collected in a pint-sized jelly jar. If the jar is undisturbed, a ¼ inch thick brown layer settles to the bottom with clear water above. With one shake of the jar, however, the solids are suspended in the water to a consistency of deeply brewed tea. Water of this same orange-brown color appears in a series of five photos taken by Beard on May 15 and July 13, 2005, at 29461 Woodford-Tehachapi Road and accepted into evidence as Exhibit No. 315. In her protest, Exhibit No. 300, Beard summarizes the condition, "To this day, the quality of the water provided by [Keene] varies constantly. One day it may be orange and stain everything and the next day the chlorine may be so strong, the water will bleach clothing." (Exhibit No. 300, at 7.)
GO 103 also requires that the utility comply with the drinking water standards of the U.S. Environmental Protection Agency and the laws and regulations of the state or local Department of Health Services. (GO 103 § II(1).) In recent years, the company has failed to satisfy many DHS obligations concerning water quality and reporting, as summarized in a DHS letter dated December 8, 2004: (1) failure to submit monthly reports from November 2003 to November 2004); (2) continuous violation of the 2 mg/L Maximum Contaminant Level (MCL) for naturally occurring fluoride; (3) a history of non-complying with public notification of the fluoride condition; (4) failure during part of 2004 to submit require monthly fluoride samples to DHS; (5) failure to submit the 2003 Annual Report to the drinking Water Program; (6) failure to submit the 2003 Consumer Confidence Report; (7) failure to conduct the summer 2004 Disinfection Byproduct Rule monitoring report; (8) low system pressure upon occasion; and (9) failure to submit the required response to DHS's October 2003 field inspection. (Exhibit No. 312; see also Exhibit No. 317 (DHS memo of call with Union Pacific attorney discussing many of these deficiencies).)
Keene was formally cited by DHS in December 2003 for failure to comply with the total coliform MCL during November 2003 although this problem apparently was solved by repairing the system chlorinator and flushing the system. (Exhibit No. 313 (June 10, 2002, letter).) Keene also was served with a notice of violation in June 2002 indicating that the company had failed to properly monitor for nitrates. (Id.)
Especially troubling are material inaccuracies in recent Water System Monthly Reports of Water Production submitted to DHS. Under GO 103, Keene is obligated to satisfy DHS testing requirements which include providing accurate and complete Water System Monthly Reports of Water Production. Keene's Water Supply Permit also imposes this reporting obligation. As indicated by Exhibit No. 311, DHS determined that reports of "tank levels and peak out flow gmp [gallons per minute] are seldom changed from month to month. For example, on the 18th day of February, March and April the Readin [sic] Inches, Tank Level Ft. and the Peak Out Flow GPM are the same for every month. Every Log Report from the beginning of 2005 is almost identical; the only thing that changes is the time of day of the peak flow." (Exhibit No. 311.) DHS indicated that "it doesn't seem possible that the report is the same every month." (Id.) This is alarming evidence either of Keene's inattention to its obligation to report accurately to DHS or of Keene's intent to mislead regulators.
Keene admits that the water system occasionally exceeds the MCL for fluoride, a primary drinking water standard, as well as the MCLs for iron and manganese and color criteria, all secondary standards. (Keene Opening Brief at 27-29.)
Since April 2002, the date established by the assigned ALJ to ascertain compliance with GO 103, Keene has frequently been in noncompliance with important water quality and service requirements set forth in GO 103. This would be troublesome in normal circumstances since these standards constitute the minimum service criteria for public utilities to satisfy. Here, however, the violations are even more troubling since Keene shifted from the Tehachapi pipeline to local wells with insufficient regard about the water supply and quality consequences to residents and, with this shift, should have taken even more safeguards to ensure that service did not deteriorate. In 2002 to 2004, however, the company decreased rather than increased its scrutiny of system operations. In this proceeding, Union Pacific management has been engaged in discussing the many problems facing the system with the community; and that attention is encouraging. Such an effort is not sufficiently encouraging, however, to avoid explicit Commission direction to improve water supply and quality. Our direction is set forth in the ordering paragraphs.
