H. B. 4653
(By Delegates Staton, Browning and Varner)
[Introduced February 20, 2006; referred to the
Committee on the Judiciary]
A BILL to amend and reenact §16-13A-25 of the Code of West
Virginia, 1931, as amended; and to amend and reenact §24-2-11
of said code, all relating to modifying the review by the
Public Service Commission of public convenience and necessity
applications where the project has been approved by
Infrastructure and Jobs Development Council; providing that
infrastructure and jobs development council approved projects
receiving a certificate of public convenience may not be
compelled to reopen.
Be it enacted by the Legislature of West Virginia:
That §16-13A-25 of the Code of West Virginia, 1931, as
amended, be amended and reenacted; and that §24-2-11 of said code
be amended and reenacted, all to read as follows:
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 13A. PUBLIC SERVICE DISTRICTS.
§16-13A-25. Borrowing and bond issuance; procedure.
(a) Notwithstanding any other provisions of this article to
the contrary, a public service district may not borrow money, enter
into contracts for the provision of engineering, design or
feasibility studies, issue or contract to issue revenue bonds or
exercise any of the powers conferred by the provisions of section
thirteen, twenty or twenty-four of this article, without the prior
consent and approval of the Public Service Commission: Provided,
That approval of funding set forth in section eleven, article two,
chapter twenty-four of this code or this section is not required if
the funding is for a project which has received a certificate of
public convenience and necessity after eighth day of July, two-
thousand-five, from the commission and where the cost of the
project changes but the change does not affect the rates
established for the project.
(b) The Public Service Commission may waive the provision of
prior consent and approval for entering into contracts for
engineering, design or feasibility studies pursuant to this section
for good cause shown which is evidenced by the public service
district filing a request for waiver of this section stated in a
letter directed to the commission with a brief description of the
project, a verified statement by the board members that the public
service district has complied with chapter five-g of this code, and
further explanation of ability to evaluate their own engineering contract, including, but not limited to:
(1) Experience with the same engineering firm; or
(2) completion of a construction project requiring engineering
services. The district shall also forward an executed copy of the
engineering contract to the commission after receiving approval of
the waiver.
(c) An engineering contract that meets one or more of the
following criteria is exempt from the waiver or approval
requirements:
(1) A contract with a public service district that is a Class
A utility on the first day of April, two thousand three, or
subsequently becomes a Class A utility as defined by commission
rule;
(2) A contract with a public service district that does not
require borrowing a that can be paid out of existing rates;
(3) A contract where the payment of engineering fees are
contingent upon the receipt of funding, and commission approval of
the funding, to construct the project which is the subject of the
contract; or
(4) A contract that does not exceed fifteen thousand dollars.
(d) Requests for approval or waivers of engineering contracts
shall be deemed granted thirty days after the filing date unless
the staff of the Public Service Commission or a party files an
objection to the request. If an objection is filed, the Public Service Commission shall issue its decision within one hundred
twenty days of the filing date. In the event objection is received
to a request for a waiver, the application shall be considered a
request for waiver as well as a request for approval in the event
of a waiver is not appropriate.
(e) Unless the properties to be constructed or acquired
represent ordinary extensions or repairs of existing systems in the
usual corse of business, a public service district must first
obtain a certificate of public convenience and necessity from the
Public Service Commission in accordance with the provision of
chapter twenty-four of this code, when a public service district is
seeking to acquire or construct public service property.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.
§24-2-11. Requirements for certificate of public convenience and
necessity.
(a) No public utility, person or corporation shall begin the
construction of any plant, equipment, property or facility for
furnishing to the public any of the services enumerated in section
one, article two of this chapter, nor apply for, nor obtain any
franchise, license or permit from any municipality or other
governmental agency, except ordinary extensions of existing systems
in the usual course of business, unless and until it shall obtain
from the Public Service Commission a certificate of public convenience and necessity authorizing such construction franchise,
license or permit.
(b) Upon the filing of any application for such certificate,
and after hearing, the commission may, in its discretion, issue or
refuse to issue, or issue in part and refuse in part, such
certificate of convenience and necessity: Provided, That the
commission, after it gives proper notice and if not protest is
received within thirty days after the notice is given, may waive
formal hearing on the application. Notice shall be given by
publication which shall state that a formal hearing may be waived
in the absence of protest, made within thirty days, to the
application. The notice shall be published as a Class I legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code. The publication area shall be the
proposed area of operation.
(c) Any public utility, person or corporation subject to the
provisions of this section shall give the commission at least
thirty days' notice of the filing of any such application for a
certificate of public convenience and necessity under this section:
Provided, That the commission may modify or waive the thirty-day
notice requirement and shall waive the thirty day notice
requirement for projects approved by the infrastructure and jobs
development council.
(d) The commission shall render its final decision on any application filed under the provisions of this section or section
eleven-a of this article within two hundred seventy days of the
filing of the application and within ninety days after final
submission of any such application for decision following a
hearing.
(e) The commission shall render its final decision on any
application filed under the provisions of this section that has
received the approval of the Infrastructure and Jobs Development
Council pursuant to article fifteen-A of chapter thirty-one of this
code, within on hundred-eighty days after filing of the
application: Provided, That if a protest is received within thirty
days after the notice is provided pursuant to subsection (b), the
commission shall render its final decision within two hundred
seventy days of the filing of the application.
(f) If the projected total cost of a project which is the
subject of an application filed pursuant to this section or section
eleven-a of this article is greater than fifty million dollars, the
commission shall render its final decision on any such application
filed under the provisions of this section or section eleven-a of
this article within four hundred days of the filing of the
application and within ninety days after final submission of any
such application for decision after a hearing.
(g) If a decision is not rendered within the aforementioned
one hundred eighty-days, two hundred seventy days, four hundred days or ninety days, the commission shall issue a certificate fo
convenience and necessity as applied for in the application.
(h) The commission shall prescribe such rules as it may deem
proper for the enforcement of the provisions of this section; and,
in establishing that public convenience and necessity do exist, the
burden of proof shall be upon the applicant.
(i) Pursuant to the requirements of this section the
commission may issue a certificate of public convenience and
necessity to any intrastate pipeline, interstate pipeline, or local
distribution company for the transportation in intrastate commerce
of natural gas used by any person for one or more uses, as define,
by rule, by the commission in the case of
(1) Natural gas sold by a producer, pipeline or other seller
to such person; or
(2) Natural gas produced by such person.
(j) A public utility, including a public service district,
which has received a certificate of public convenience and
necessity after the eighth day of July, two thousand-five from the
commission and has been approved by the infrastructure and jobs
development council, is not required to, and cannot be compelled
to, reopen the proceeding if the cost of the project changes but
the change does not effect the rates established for the project.
(k) Any public utility, person or corporation proposing any
electric power project that requires a certificate under this section is not required to obtain such certificate before applying
for or obtaining any franchise, license or permit from any
municipality or other governmental agency.
NOTE: The purpose of this bill is to clarify amendments made
during the 2005 Regular Session to statutory requirements for
certificates of convenience and necessity when Infrastructure and
Jobs Development Council has approved the project. The
clarification goes to projects involving PSCs.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.