SB10 HJUD AM 3-6
Casto 3264
The Committee on the Judiciary moved to amend the bill on page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
“CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 19. MUNICIPAL AND COUNTY WATERWORKS AND ELECTRIC POWER SYSTEMS.
Part II. Limitations on Sale or Lease of Certain Municipal Waterworks.
§8-19-2. Contracts for purchase of electric power or energy by a municipality; definitions; requirements; payments; rates and charges.
(a) For the purposes of this section:
(1) “Contract” means an agreement entered into by a municipality with any other party for the purchase of electric output, capacity, or energy from a project as defined herein;
(2) “Any other party” means any other legal entity, including, but not limited to, another municipality, political subdivision, public authority, agency, or instrumentality of any state or the United States, a partnership, a limited partnership, a limited liability company, a corporation, an electric cooperative or an investor-owned utility existing under the laws of any state; and
(3) “Project” or “projects” means systems or facilities owned by another party and used for the generation, transmission, transformation, or supply of electric power, or any interest in them, whether an undivided interest as a tenant in common or otherwise, or any right to the output, capacity, or services thereof.
(b) In addition to the general authority to purchase electricity on a wholesale basis for resale to its customers, any municipality that owns and operates an electric power system under the provisions of this article may enter into a contract with any other party for the purchase of electricity from one or more projects located in the United States that provides that the contracting municipality is obligated to make payments required by the contract whether or not a project is completed, operable, or operating and notwithstanding the suspension, interruption, interference, reduction, or curtailment of the output of a project or the power and energy contracted for, and that the payments shall not be subject to any reduction, whether by offset or otherwise, and shall not be conditioned upon performance or nonperformance by any other party. The contract may provide that, in the event of a default by the municipality or any other party to the contract in the performance of each entity’s obligations under the contract, any nondefaulting municipality or any other party to the contract shall on a pro rata basis succeed to the rights and interests of, and assume the obligations of, the defaulting party.
(c) Notwithstanding any other provisions of law, ordinance or charter provision to the contrary, a contract under §8-19-2(b) of this code may extend for more than 50 years or 50 years from the date a project is estimated to be placed into normal continuous operation and the execution and effectiveness of the contract is not subject to any authorizations or approvals by the state or any agency, commission, instrumentality, or political subdivision thereof except as otherwise specifically required by law.
(d) A contract §8-19-2(b) of this code may provide that payments by the municipality are made solely from and may be secured by a pledge of and lien upon revenues derived by the municipality from ownership and operation and that payments shall constitute an operating expense of the electric power system. No obligation under the contract shall constitute a legal or equitable pledge, charge, lien, or encumbrance upon any property of the municipality or upon any of its income, receipts, or revenues, except the revenues of the municipality’s electric power system. Neither the faith and credit nor the taxing power of the municipality shall be pledged for the payment of any obligation under the contract.
(e) A
municipality contracting under the provisions of §8-19-2(b) of this code is
obligated to fix, charge, and collect rents, rates, fees, and charges for
electric power and energy and other services it sells, furnishes, or supplies
through its electric power system in an amount sufficient to provide revenues
adequate to meet its obligations under the contract and to pay any and all
other amounts payable from or constituting a charge and lien upon the revenues,
including the amounts necessary to pay the principal and interest on any
municipal bonds issued related to its electric power system: Provided,
That any change in the rates and charges of the municipality to the customers
of the electric power system under the provisions of this section are subject
to the provisions and requirements of section four-b, article two. chapter
twenty-four §8-19-2a of this code and the obligations of the
municipality under the contract are costs of providing electric service within
the meaning of that section.
§8-19-2a. Procedure for changing rates of municipal electric power systems; legislative findings.
All rates, fees, and charges set by municipal electric power systems shall be just, reasonable, applied without unjust discrimination between or preference for any customer or class of customer, and based primarily on the costs of providing these services. All rates and charges shall be based upon the measured or reasonably estimated cost of service and the equitable sharing of those costs between customers based upon the cost of providing the service received by the customer, including a reasonable slant-in-service depreciation expense. The rates and charges shall be adopted by the power system’s governing board by municipal ordinance to be effective not sooner than 45 days after adoption. The 45-day waiting period may be waived by public vote of the governing body if that body finds and declares the public utility that is a political subdivision of the state to be in financial distress, such that the 45-day waiting period would be detrimental to the ability of the utility to deliver continued and compliant public services: Provided, That notice of intent to effect a rate change shall be specified on the monthly billing statement of the customers of the utility for the month next preceding the month in which the rate change is to become effective, and the governing body shall give its customers other reasonable notices as will allow filing of timely objections to the proposed rate change and full participation in municipal rate legislation through the provision of a public forum in which customers may comment upon the proposed rate change prior to an enactment vote. Notwithstanding the exclusion of municipal power systems’ rates, fees, charges, and rate-making process from the jurisdiction of the Public Service Commission, municipal power systems shall submit information regarding their rates, fees, and charges to the commission as set forth in §24-2-9 of this code.
§8-19-2b. Right of appeal by customers.
Customers may appeal a rate increase to the circuit court of the county in which the municipality is located on the grounds that the rate ordinance or its passage does not comply with the provisions of this article by filing a petition, signed by at least 750 customers or 25 percent of the customers served by the municipal electric utility, whichever is fewer.. Any petition challenging the ordinance must be filed within 30 days following the adoption of the rate ordinance.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 13A. PUBLIC SERVICE DISTRICTS.
§16-13A-9. Rules; service rates and charges; discontinuance of service; required water and sewer connections; lien for delinquent fees
(a) (1) The board may make, enact and enforce all needful rules in connection with the acquisition, construction, improvement, extension, management, maintenance, operation, care, protection, and the use of any public service properties owned or controlled by the district. The board shall establish, in accordance with this article, rates, fees and charges for the services and facilities it furnishes, which shall be sufficient at all times, notwithstanding the provisions of any other law or laws, to pay the cost of maintenance, operation and depreciation of the public service properties and principal of and interest on all bonds issued, other obligations incurred under the provisions of this article and all reserve or other payments provided for in the proceedings which authorized the issuance of any bonds under this article. The schedule of the rates, fees and charges may be based upon:
(A) The consumption of water or gas on premises connected with the facilities, taking into consideration domestic, commercial, industrial and public use of water and gas;
(B) The number and kind of fixtures connected with the facilities located on the various premises;
(C) The number of persons served by the facilities;
(D) Any combination of paragraphs (A), (B) and (C) of this subdivision; or
(E) Any other basis or classification which the board may determine to be fair and reasonable, taking into consideration the location of the premises served and the nature and extent of the services and facilities furnished. However, no rates, fees or charges for stormwater services may be assessed against highways, road and drainage easements or stormwater facilities constructed, owned or operated by the West Virginia Division of Highways.
(2) The board of a public
service district with at least four thousand five hundred 4,500
customers and annual combined gross revenue of $3 million dollars or
more from its separate or combined water and sewer services may make, enact and
enforce all needful rules in connection with the enactment or amendment of
rates, fees and charges of the district. At a minimum, these rules shall provide
for:
(A) Adequate prior public notice of the contemplated rates, fees and charges by causing a notice of intent to effect such a change to be provided to the customers of the district for the month immediately preceding the month in which the contemplated change is to be considered at a hearing by the board. Such notice shall include a statement that a change in rates, fees and charges is being considered, the time, date and location of the hearing of the board at which the change will be considered and that the proposed rates, fees and charges are on file at the office of the district for review during regular business hours. Such notice shall be printed on, or mailed with, the monthly billing statement, or provided in a separate mailing.
(B) Adequate prior public notice of the contemplated rates, fees and charges by causing to be published, after the first reading and approval of a resolution of the board considering such revised rates, fees and charges but not less than one week prior to the public hearing of the board on such resolution, as a Class I legal advertisement, of the proposed action, in compliance with the provisions of §59-3-1 et seq. of this code. The publication area for publication shall be all territory served by the district. If the district provides service in more than one county, publication shall be made in a newspaper of general circulation in each county that the district provides service.
(C) The public notice of the proposed action shall summarize the current rates, fees and charges and the proposed changes to said rates, fees and charges; the date, time and place of; the public hearing on the resolution approving such revised rates, fees and charges and the place or places within the district where the proposed resolution approving the revised rates, fees and charges may be inspected by the public. A reasonable number of copies of the proposed resolution shall be kept at the place or places and be made available for public inspection. The notice shall also advise that interested parties may appear at the public hearing before the board and be heard with respect to the proposed revised rates, fees and charges.
(D) The resolution proposing the revised rates, fees and charges shall be read at two meetings of the board with at least two weeks intervening between each meeting. The public hearing may be conducted by the board prior to, or at, the meeting at which the resolution is considered for adoption on the second reading.
(E) Rates, fees and charges approved by resolution of the board shall be forwarded in writing to the county commission with the authority to appoint the members of the board. The county commission shall publish notice of the proposed revised rates, fees and charges by a Class I legal advertisement in compliance with the provisions of §59-3-1 et seq. of this code. Within 45 days of receipt of the proposed rates, fees and charges, the county commission shall take action to approve, modify, or reject the proposed rates, fees and charges, in its sole discretion. If, after 45 days, the county commission has not taken final action to approve, modify or reject the proposed rates, fees and charges, as presented to the county commission, shall be effective with no further action by the board or county commission. In any event, this 45-day period shall be mandatory unless extended by the official action of both the board proposing the rates, fees and charges, and the appointing county commission.
(F) Enactment of the proposed or modified rates, fees and charges shall follow an affirmative vote by the county commission and shall be effective no sooner than 45 days following action. The 45-day waiting period may be waived by public vote of the county commission only if the commission finds and declares the district to be in financial distress such that the 45-day waiting period would be detrimental to the ability of the district to deliver continued and compliant public services.
(G) The public service district, or a customer aggrieved by the changed rates or charges who presents to the circuit court a petition signed by at least 750 customers or 25 percent of the customers served by the public service district, whichever is fewer, when dissatisfied by the approval, modification, or rejection by the county commission of the proposed rates, fees and charges under the provisions of this subdivision (2) may file a complaint regarding the rates, fees and charges resulting from the action of, or failure to act by, the county commission in the circuit court of the county in which the county commission sits: Provided, That any complaint or petition filed hereunder shall be filed within 30 days of the county commission’s final action approving, modifying or rejecting such rates, fees and charges, or the expiration of the 45 day period from the receipt by the county commission, in writing, of the rates, fees and charges approved by resolution of the board, without final action by the county commission to approve, modify or reject such rates, fees and charges, and the circuit court shall resolve said complaint: Provided, however, That the rates, fees and charges so fixed by the county commission, or those adopted by the district upon which the county commission failed to act, shall remain in full force and effect, until set aside, altered or amended by the circuit court in an order to be followed in the future.
(3) Where water, sewer, stormwater or gas services, or any combination thereof, are all furnished to any premises, the schedule of charges may be billed as a single amount for the aggregate of the charges. The board shall require all users of services and facilities furnished by the district to designate on every application for service whether the applicant is a tenant or an owner of the premises to be served. If the applicant is a tenant, he or she shall state the name and address of the owner or owners of the premises to be served by the district. Notwithstanding the provisions of §24-3-8 of this code to the contrary, all new applicants for service shall deposit the greater of a sum equal to two twelfths of the average annual usage of the applicant’s specific customer class or $50, with the district to secure the payment of service rates, fees and charges in the event they become delinquent as provided in this section. If a district provides both water and sewer service, all new applicants for service shall deposit the greater of a sum equal to two twelfths of the average annual usage for water service or $50 and the greater of a sum equal to two twelfths of the average annual usage for wastewater service of the applicant’s specific customer class or $50. In any case where a deposit is forfeited to pay service rates, fees and charges which were delinquent at the time of disconnection or termination of service, no reconnection or reinstatement of service may be made by the district until another deposit equal to the greater of a sum equal to two twelfths of the average usage for the applicant’s specific customer class or $50 has been remitted to the district. After 12 months of prompt payment history, the district shall return the deposit to the customer or credit the customer’s account at a rate as the Public Service Commission may prescribe: Provided, That where the customer is a tenant, the district is not required to return the deposit until the time the tenant discontinues service with the district. Whenever any rates, fees, rentals or charges for services or facilities furnished remain unpaid for a period of 20 days after the same become due and payable, the user of the services and facilities provided is delinquent and the user is liable at law until all rates, fees and charges are fully paid. The board may, under reasonable rules promulgated by the Public Service Commission, shut off and discontinue water or gas services to all delinquent users of either water or gas facilities, or both, 10 days after the water or gas services become delinquent: Provided, however, That nothing contained within the rules of the Public Service Commission shall be deemed to require any agents or employees of the board to accept payment at the customer’s premises in lieu of discontinuing service for a delinquent bill.
(b) In the event that any publicly or privately owned utility, city, incorporated town, other municipal corporation or other public service district included within the district owns and operates separately water facilities, sewer facilities or storm water facilities and the district owns and operates another kind of facility, either water or sewer, or both, as the case may be, then the district and the publicly or privately owned utility, city, incorporated town or other municipal corporation or other public service district shall covenant and contract with each other to shut off and discontinue the supplying of water service for the nonpayment of sewer or storm water service fees and charges: Provided, That any contracts entered into by a public service district pursuant to this section shall be submitted to the Public Service Commission for approval. Any public service district which provides water and sewer service, water and storm water service or water, sewer and storm water service has the right to terminate water service for delinquency in payment of water, sewer or storm water bills. Where one public service district is providing sewer service and another public service district or a municipality included within the boundaries of the sewer or storm water district is providing water service and the district providing sewer or storm water service experiences a delinquency in payment, the district or the municipality included within the boundaries of the sewer or storm water district that is providing water service, upon the request of the district providing sewer or storm water service to the delinquent account, shall terminate its water service to the customer having the delinquent sewer or storm water account: Provided, however, That any termination of water service must comply with all rules and orders of the Public Service Commission: Provided further, That nothing contained within the rules of the Public Service Commission shall be deemed to require any agents or employees of the public service districts to accept payment at the customer’s premises in lieu of discontinuing service for a delinquent bill.
(c) Any district furnishing
sewer facilities within the district may require or may, by petition to the
circuit court of the county in which the property is located, compel or may
require the Division of Health Bureau for Public Health to compel
all owners, tenants or occupants of any houses, dwellings and buildings located
near any sewer facilities where sewage will flow by gravity or be transported
by other methods approved by the Division of Health Bureau for Public
Health, including, but not limited to, vacuum and pressure systems, approved
under the provisions of §16-1-9 of this code, from the houses, dwellings or
buildings into the sewer facilities, to connect with and use the sewer
facilities and to cease the use of all other means for the collection,
treatment and disposal of sewage and waste matters from the houses, dwellings
and buildings where there is gravity flow or transportation by any other
methods approved by the Division of Health Bureau for Public Health,
including, but not limited to, vacuum and pressure systems, approved under the
provisions of §16-1-9 of this code and the houses, dwellings and buildings can
be adequately served by the sewer facilities of the district and it is declared
that the mandatory use of the sewer facilities provided for in this subsection
is necessary and essential for the health and welfare of the inhabitants and
residents of the districts and of the state. If the public service district
requires the property owner to connect with the sewer facilities even when
sewage from dwellings may not flow to the main line by gravity and the property
owner incurs costs for any changes in the existing dwellings’ exterior plumbing
in order to connect to the main sewer line, the public service district board
shall authorize the district to pay all reasonable costs for the changes in the
exterior plumbing, including, but not limited to, installation, operation,
maintenance and purchase of a pump or any other method approved by the Division
of Health Bureau for Public Health. Maintenance and operation costs
for the extra installation should be reflected in the users charge for approval
of the Public Service Commission. The circuit court shall adjudicate the merits
of the petition by summary hearing to be held not later than 30 days after
service of petition to the appropriate owners, tenants or occupants.
(d) Whenever any district
has made available sewer facilities to any owner, tenant or occupant of any
house, dwelling or building located near the sewer facility and the engineer
for the district has certified that the sewer facilities are available to and
are adequate to serve the owner, tenant or occupant and sewage will flow by
gravity or be transported by other methods approved by the Division of
Health Bureau for Public Health from the house, dwelling or building
into the sewer facilities, the district may charge, and the owner, tenant or
occupant shall pay, the rates and charges for services established under this
article only after 30 days’ notice of the availability of the facilities has
been received by the owner, tenant or occupant. Rates and charges for sewage
services shall be based upon actual water consumption or the average monthly
water consumption based upon the owner’s, tenant’s or occupant’s specific
customer class.
(e) The owner, tenant or occupant of any real property may be determined and declared to be served by a storm water system only after each of the following conditions is met: (1) The district has been designated by the Environmental Protection Agency as an entity to serve a West Virginia Separate Storm Sewer System community, as defined in 40 C. F. R. §122.26; (2) the district’s authority has been properly expanded to operate and maintain a storm water system; (3) the district has made available a storm water system where storm water from the real property affects or drains into the storm water system; and (4) the real property is located in the Municipal Separate Storm Sewer System’s designated service area. It is further hereby found, determined and declared that the mandatory use of the storm water system is necessary and essential for the health and welfare of the inhabitants and residents of the district and of the state. The district may charge and the owner, tenant or occupant shall pay the rates, fees and charges for storm water services established under this article only after 30 days’ notice of the availability of the storm water system has been received by the owner. An entity providing storm water service shall provide a tenant a report of the storm water fee charged for the entire property and, if appropriate, that portion of the fee to be assessed to the tenant.
(f) All delinquent fees, rates and charges of the district for either water facilities, sewer facilities, gas facilities or storm water systems or storm water management programs are liens on the premises served of equal dignity, rank and priority with the lien on the premises of state, county, school and municipal taxes. Nothing contained within the rules of the Public Service Commission shall be deemed to require any agents or employees of the public service districts to accept payment at the customer’s premises in lieu of discontinuing service for a delinquent bill. In addition to the other remedies provided in this section, public service districts are granted a deferral of filing fees or other fees and costs incidental to the bringing and maintenance of an action in magistrate court for the collection of delinquent water, sewer, storm water or gas bills. If the district collects the delinquent account, plus reasonable costs, from its customer or other responsible party, the district shall pay to the magistrate the normal filing fee and reasonable costs which were previously deferred. In addition, each public service district may exchange with other public service districts a list of delinquent accounts: Provided, That an owner of real property may not be held liable for the delinquent rates or charges for services or facilities of a tenant, nor may any lien attach to real property for the reason of delinquent rates or charges for services or facilities of a tenant of the real property unless the owner has contracted directly with the public service district to purchase the services or facilities.
(g) Anything in this section to the contrary notwithstanding, any establishment, as defined in §22-11-3 of this code, now or hereafter operating its own sewage disposal system pursuant to a permit issued by the Department of Environmental Protection, as prescribed by §22-11-11 of this code, is exempt from the provisions of this section.
(h) A public service district which has been designated by the Environmental Protection Agency as an entity to serve a West Virginia Separate Storm Sewer System community shall prepare an annual report detailing the collection and expenditure of rates, fees or charges and make it available for public review at the place of business of the governing body and the storm water utility main office.
(i) Notwithstanding any code provision to the contrary, a public service district may accept payment for all fees and charges due, in the form of a payment by a credit or check card transaction or a direct withdrawal from a bank account. The public service district may set a fee to be added to each transaction equal to the charge paid by the public service district for use of the credit or check card or direct withdrawal by the payor. The amount of such fee shall be disclosed to the payor prior to the transaction and no other fees for the use of a credit or check card or direct withdrawal may be imposed upon the payor and the whole of such charge or convenience fee shall be borne by the payor: Provided, That, to the extent a public service district desires to accept payments in the forms described in this subsection and does not have access to the equipment or receive the services necessary to do so, the public service district shall first obtain three bids for services and equipment necessary to affect the forms of transactions described in this subsection and use the lowest qualified bid received. Acceptance of a credit or check card or direct withdrawal as a form of payment shall comport with the rules and requirements set forth by the credit or check card provider or banking institution.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE
COMMISSION.
§24-2-1. Jurisdiction of commission; waiver of jurisdiction.
(a) The jurisdiction of the commission shall extend to all public utilities in this state and shall include any utility engaged in any of the following public services:
Common
carriage of passengers or goods, whether by air, railroad, street railroad,
motor or otherwise, by express or otherwise, by land, water or air, whether
wholly or partly by land, water or air; transportation of oil, gas or water by
pipeline; transportation of coal and its derivatives and all mixtures and
combinations thereof with other substances by pipeline; sleeping car or parlor
car services; transmission of messages by telephone, telegraph or radio;
generation and transmission of electrical energy by hydroelectric or other
utilities for service to the public, whether directly or through a distributing
utility; supplying water, gas or electricity by municipalities or others; sewer
systems servicing twenty-five 25 or more persons or firms other
than the owner of the sewer systems: Provided, That if a public utility
other than a political subdivision intends to provide sewer service by an
innovative, alternative method, as defined by the federal Environmental
Protection Agency, the innovative, alternative method is a public utility
function and subject to the jurisdiction of the Public Service Commission
regardless of the number of customers served by the innovative, alternative
method; any public service district created under the provisions of article
thirteen-a, chapter sixteen §16-13A-1, et seq. of this code,
except that the Public Service Commission will have no jurisdiction over the
provision of stormwater services by a public service district; toll bridges,
wharves, ferries; solid waste facilities; and any other public service: Provided,
however, That natural gas producers who provide natural gas service to not
more than twenty-five 25 residential customers are exempt from
the jurisdiction of the commission with regard to the provisions of such
residential service: Provided further, That upon request of any of the
customers of such natural gas producers, the commission may, upon good cause
being shown, exercise such authority as the commission may deem appropriate
over the operation, rates and charges of such producer and for such length of
time as the commission may consider to be proper.
(b) The jurisdiction of the commission over political subdivisions
of this state providing separate or combined water and/or sewer services and
having at least four thousand five hundred 4,500 customers and
annual combined gross revenues of $3 million dollars or more that are
political subdivisions of the state is limited to:
(1)
General supervision of public utilities, as granted and described in section
five §24-2-5 of this article Code;
(2)
Regulation of measurements, practices, acts or services, as granted and
described in section seven §24-2-7 of this article Code;
(3)
Regulation of a system of accounts to be kept by a public utility that is a
political subdivision of the state, as granted and described in section
eight §24-2-8 of this article Code;
(4)
Submission of information to the commission regarding rates, tolls, charges or
practices, as granted and described in section nine §24-2-9 of
this article Code;
(5)
Authority to subpoena witnesses, take testimony and administer oaths to any
witness in any proceeding before or conducted by the commission, as granted and
described in section ten §24-2-10 of this article Code;
and
(6)
Investigation and resolution of disputes between a political subdivision of the
state providing wholesale water and/or wastewater treatment or other services,
whether by contract or through a tariff, and its customer or customers,
including, but not limited to, rates, fees and charges, service areas and contested
utility combinations. Provided, that any request for an investigation related
to such a dispute that is based on the act or omission of the political
subdivision shall be filed within 30 days of the act or omission of the
political subdivision and the commission shall resolve said dispute within 120
days of filing. The one hundred-twenty 120-day period for
resolution of the dispute may be tolled by the Commission until the necessary
information showing the basis of the rates, fees and charges or other information
as the commission considers necessary is filed. Provided further however,
That the disputed rates, fees and charges so fixed by the political
subdivision providing separate or combined water and/or sewer services shall
remain in full force and effect until set aside, altered or, amended by
the commission in an order to be followed in the future.
(7) Customers of water and sewer utilities operated by a political subdivision of the state may bring formal or informal complaints regarding the commission’s exercise of the powers enumerated in this section and the commission shall resolve these complaints.
(8) In the event that a political subdivision has a deficiency in either its bond revenue or bond reserve accounts, or is otherwise in breach of a bond covenant, any bond holder may petition the Public Service Commission for such redress as will bring the accounts to current status or otherwise resolve the breached covenant, and the commission shall have jurisdiction to fully resolve the alleged deficiency or breach.
(c) The commission may, upon application, waive its jurisdiction and allow a utility operating in an adjoining state to provide service in West Virginia when:
(1) An area of West Virginia cannot be practicably and economically served by a utility licensed to operate within the State of West Virginia;
(2) Said area can be provided with utility service by a utility which operates in a state adjoining West Virginia;
(3) The utility operating in the adjoining state is regulated by a regulatory agency or commission of the adjoining state; and
(4) The number of customers to be served is not substantial. The rates the out-of-state utility charges West Virginia customers shall be the same as the rate the utility is duly authorized to charge in the adjoining jurisdiction. The commission, in the case of any such utility, may revoke its waiver of jurisdiction for good cause.
(d) Any other provisions of this chapter to the contrary notwithstanding:
(1) An
owner or operator of an electric generating facility located or to be located
in this state that has been designated as an exempt wholesale generator under
applicable federal law, or will be so designated prior to commercial operation
of the facility, and for which such facility the owner or operator holds a
certificate of public convenience and necessity issued by the commission on or
before July 1, 2003, shall be subject to subsections (e), (f), (g), (h), (i)
and (j), section eleven-c §24-2-11c(e) through §24-2-11c(j) of this
article Code as if the certificate of public convenience and
necessity for such facility were a siting certificate issued under said
section §24-2-11c of this Code and shall not otherwise be subject to
the jurisdiction of the commission or to the provisions of this chapter with
respect to such facility except for the making or constructing of a material
modification thereof as provided in subdivision (5) §24-2-1(d)(5) of
this subsection Code.
(2)
Any person, corporation or other entity that intends to construct or construct
and operate an electric generating facility to be located in this state that
has been designated as an exempt wholesale generator under applicable federal
law, or will be so designated prior to commercial operation of the facility,
and for which facility the owner or operator does not hold a certificate of
public convenience and necessity issued by the commission on or before July 1,
2003, shall, prior to commencement of construction of the facility, obtain a
siting certificate from the commission pursuant to the provisions of section
eleven-c §24-2-11c of this article Code in lieu of a
certificate of public convenience and necessity pursuant to the provisions of section
eleven §24-2-11 of this article Code. An owner or
operator of an electric generating facility as is described in this subdivision
for which a siting certificate has been issued by the commission shall be
subject to subsections (e), (f), (g), (h), (i) and (j), section eleven-c §24-2-11c(e)
through §24-2-11c(j) of this article Code and shall not
otherwise be subject to the jurisdiction of the commission or to the provisions
of this chapter with respect to such facility except for the making or
constructing of a material modification thereof as provided in subdivision
(5) §24-2-1(d)(5) of this subsection Code.
(3) An
owner or operator of an electric generating facility located in this state that
had not been designated as an exempt wholesale generator under applicable
federal law prior to commercial operation of the facility that generates
electric energy solely for sale at retail outside this state or solely for sale
at wholesale in accordance with any applicable federal law that preempts state
law or solely for both such sales at retail and such sales at wholesale and
that had been constructed and had engaged in commercial operation on or before
July 1, 2003, shall not be subject to the jurisdiction of the commission or to
the provisions of this chapter with respect to such facility, regardless of
whether such facility subsequent to its construction has been or will be
designated as an exempt wholesale generator under applicable federal law: Provided,
That such owner or operator shall be subject to in subdivision (5) §24-2-1(d)(5)
of this subsection Code if a material modification of such
facility is made or constructed.
(4)
Any person, corporation or other entity that intends to construct or construct
and operate an electric generating facility to be located in this state that
has not been or will not be designated as an exempt wholesale generator under
applicable federal law prior to commercial operation of the facility that will
generate electric energy solely for sale at retail outside this state or solely
for sale at wholesale in accordance with any applicable federal law that
preempts state law or solely for both such sales at retail and such sales at
wholesale and that had not been constructed and had not been engaged in
commercial operation on or before July 1, 2003, shall, prior to commencement of
construction of the facility, obtain a siting certificate from the commission
pursuant to the provisions of section eleven-c §24-2-11c of this article
Code in lieu of a certificate of public convenience and necessity
pursuant to the provisions of section eleven of this article. An owner or
operator of an electric generating facility as is described in this subdivision
for which a siting certificate has been issued by the commission shall be
subject to subsections (e), (f), (g), (h), (i) and (j), section eleven-c §24-2-11c(e)
through §24-2-11c(j) of this article Code and shall not
otherwise be subject to the jurisdiction of the commission or to the provisions
of this chapter with respect to such facility except for the making or
constructing of a material modification thereof as provided in subdivision
(5) §24-2-1(d)(5) of this subsection Code.
(5) An
owner or operator of an electric generating facility described in this
subsection shall, before making or constructing a material modification of the
facility that is not within the terms of any certificate of public convenience
and necessity or siting certificate previously issued for the facility or an
earlier material modification thereof, obtain a siting certificate for the
modification from the commission pursuant to the provisions of section
eleven-c §24-2-11c of this article Code in lieu of a
certificate of public convenience and necessity for the modification pursuant
to the provisions of section eleven §24-2-11 of this article
Code and, except for the provisions of section eleven-c §24-2-11c
of this article Code, shall not otherwise be subject to the
jurisdiction of the commission or to the provisions of this chapter with
respect to such modification.
(6)
The commission shall consider an application for a certificate of public
convenience and necessity filed pursuant to section eleven §24-2-11
of this article Code to construct an electric generating facility
described in this subsection or to make or construct a material modification of
such electric generating facility as an application for a siting certificate
pursuant to section eleven-c §24-2-11c of this article Code
if the application for the certificate of public convenience and necessity was
filed with the commission prior to July 1, 2003, and if the commission has not
issued a final order thereon as of that date.
(7) The limitations on the jurisdiction of the commission over, and on the applicability of the provisions of this chapter to, the owner or operator of an electric generating facility as imposed by and described in this subsection shall not be deemed to affect or limit the commission’s jurisdiction over contracts or arrangements between the owner or operator of such facility and any affiliated public utility subject to the provisions of this chapter.
(e) The commission shall not have jurisdiction of Internet protocol-enabled service or voice-over Internet protocol-enabled service. As used in this subsection:
(1) “Internet protocol-enabled service” means any service, capability, functionality or application provided using Internet protocol, or any successor protocol, that enables an end user to send or receive a communication in Internet protocol format, or any successor format, regardless of whether the communication is voice, data or video.
(2) “Voice-over Internet protocol service” means any service that:
(i) Enables real-time two-way voice communications that originate or terminate from the user’s location using Internet protocol or a successor protocol; and
(ii) Uses a broadband connection from the user’s location.
(3) The term “voice-over Internet protocol service” includes any service that permits users to receive calls that originate on the public-switched telephone network and to terminate calls on the public-switched telephone network.
(f) Notwithstanding any other provisions of this article,
the commission shall not have jurisdiction to review or approve any transaction
involving a telephone company otherwise subject to sections twelve §24-2-12
and twelve-a, article two, chapter twenty-four
§24-2-12a of this code if all entities
involved in the transaction are under common ownership.
(g) The Legislature finds that the rates, fees, charges, and ratemaking of municipal power systems are most fairly and effectively regulated by the local governing body. Therefore, notwithstanding any other provisions of this article, the commission shall not have jurisdiction over the setting or adjustment of rates, fees, and charges of municipal power systems. Further, the jurisdiction of the Public Service Commission over municipal power systems is limited to that granted specifically in this code.
§24-2-2. General power of commission to regulate public utilities.
(a) The
commission is hereby given power to may investigate all rates,
methods, and practices of public utilities subject to the provisions of this
chapter; to require them to conform to the laws of this state and to all rules,
regulations and orders of the commission not contrary to law; and to require
copies of all reports, rates, classifications, schedules, and timetables in
effect and used by the public utility or other person to be filed with the
commission, and all other information desired by the commission relating to the
investigation and requirements, including inventories of all property in such
the form and detail as the commission may prescribe prescribes.
The commission may compel obedience to its lawful orders by mandamus or
injunction or other proper proceedings in the name of the state in any circuit
court having jurisdiction of the parties or of the subject matter, or the
Supreme Court of Appeals directly, and the proceedings shall have priority over
all pending cases. The commission may change any intrastate rate, charge, or
toll which is unjust or unreasonable or any interstate charge with respect to
matters of a purely local nature which have not been regulated, by or pursuant
to, an act of Congress and may prescribe a rate, charge, or toll that is just
and reasonable, and change or prohibit any practice, device, or method of
service in order to prevent undue discrimination or favoritism between persons
and between localities and between commodities for a like and contemporaneous
service. But in no case shall may the rate, toll, or charge be
more than the service is reasonably worth, considering the cost of the service.
Every order entered by the commission shall continue in force until the
expiration of the time, if any, named by the commission in the order, or until
revoked or modified by the commission, unless the order is suspended, modified,
or revoked by order or decree of a court of competent jurisdiction: Provided,
That in the case of utilities used by emergency shelter providers, the
commission shall prescribe such rates, charges or tolls that are the
lowest available. “Emergency shelter provider” means any nonprofit entity which
provides temporary emergency housing and services to the homeless or to victims
of domestic violence or other abuse.
(b) Notwithstanding any other provision of this code to the contrary, rates are not discriminatory if, when considering the debt costs associated with a future water or sewer project which would not benefit existing customers, the commission establishes rates which ensure that the future customers to be served by the new project are solely responsible for the debt costs associated with the project.
(c)
Notwithstanding any other provision of this code to the contrary, the jurisdiction of the
commission over water and/or sewer utilities that are political subdivisions of
the state providing a separate or combined services and having at least four
thousand five hundred 4,500 customers and annual combined gross
revenues of $3 million dollars or more shall be is limited
to those powers enumerated in §24-2-1(b) of this code.
(d) Notwithstanding any other provision of this code to the contrary, the jurisdiction of the commission does not extend over the setting or adjustment of rates, fees, and charges of municipal power systems. The rates, fees, charges and rate-making process of municipal power systems is governed by the provisions of §8-19-2a of this code.
§24-2-3. General power of commission with respect to rates.
(a)
The commission shall have power to may enforce, originate,
establish, change, and promulgate tariffs, rates, joint rates, tolls, and
schedules for all public utilities except for municipal power systems and
water and/or sewer utilities that are political subdivisions of this state providing
a separate or combined services and having at least four thousand five
hundred 4,500 customers and annual combined gross revenues of $3
million dollars or more Provided, That the commission
may exercise such rate authority over municipally owned electric or
natural gas utilities or a municipally owned water and/or sewer utility having
less than four thousand five hundred 4,500 customers or annual
combined gross revenues of less than $3 million dollars only under the
circumstances and limitations set forth in §24-2-4b of this code, and subject
to the provisions set forth in §24-2-3(b) of this code. And whenever the
commission shall, after hearing, find finds any existing
rates, tolls, tariffs, joint rates or schedules enacted or maintained by a
utility regulated under the provisions of this section to be unjust,
unreasonable, insufficient, or unjustly discriminatory or otherwise in
violation of any of the provisions of this chapter, the commission shall by an
order fix reasonable rates, joint rates, tariffs, tolls, or schedules to be
followed in the future in lieu of those found to be unjust, unreasonable,
insufficient, or unjustly discriminatory or otherwise in violation of any
provisions of law, and the said commission, in fixing the rate of any
railroad company, may fix a fair, reasonable and just rate to be charged on any
branch line thereof, independent of the rate charged on the main line of such
that railroad.
(b) Any complaint filed
with the commission by a resale or wholesale customer of a municipally owned
water and/or sewer utility having
less than four thousand five hundred 4,500 customers or annual
combined gross revenue of less than $3 million dollars concerning rates, fees,
or charges applicable to such resale or wholesale customer shall be filed within 30 days of the enactment by the
governing body of the political subdivision of an ordinance changing rates,
fees, or charges for such service. The commission shall resolve said complaint
within 120 days of filing. The 120-day period for resolution of the complaint
may be tolled by the commission until the necessary information showing the
basis of the rates, fees, charges, and other information as the commission
considers necessary is filed: Provided, That rates, fees, and charges so
fixed by the political subdivision providing separate or combined water and/or
sewer services shall remain in full force and effect until set aside, altered,
or amended by the commission in an order to be followed in the future: Provided,
however, That the commission shall have no authority to order refunds for
amounts collected during the pendency of the complaint proceeding unless the
rates, fees, or charges so enacted by the governing body were enacted subject
to refund under the provisions of §24-2-4b(d)(2) or §24-2-4b(g) of this code.
(c) In determining just and reasonable rates, the commission may audit and investigate management practices and policies, or have performed an audit and investigation of such practices and policies, in order to determine whether the utility is operating with efficiency and is utilizing sound management practices. The commission shall adopt rules and regulations setting forth the scope, frequency, and application of such audits and investigations to the various utilities subject to its jurisdiction. The commission may include the cost of conducting the management audit in the cost of service of the utility.
(d) In determining just and reasonable rates, the commission shall investigate and review transactions between utilities and affiliates. The commission shall limit the total return of the utility to a level which, when considered with the level of profit or return the affiliate earns on transactions with the utility, is just and reasonable.
§24-2-4b. Procedures for changing rates of electric and natural gas cooperatives, local exchange services of telephone cooperatives, and municipally operated public utilities.
(a)
The rates and charges of electric cooperatives, natural gas cooperatives and
municipal water and/or sewer utilities that are political subdivisions of the
state having less than four thousand five hundred 4,500
customers or annual combined gross revenues of less than $3 million dollars,
except for municipally operated commercial solid waste facilities as defined in
§22-15-2 of this code, and the rates and charges for local exchange services
provided by telephone cooperatives are not subject to the rate approval
provisions of 24-2-4 or §24-2-4a of this code, but are subject to the limited
rate provisions of this section.
(b)
All rates and charges set by electric cooperatives, natural gas cooperatives,
and municipally operated public utilities that are political subdivisions of
the state providing water, sewer, electric and/or natural gas services
that are subject to the provisions of this section and all rates and charges
for local exchange services set by telephone cooperatives shall be just,
reasonable, applied without unjust discrimination between or preference for any
customer or class of customer and based primarily on the costs of providing
these services. All rates and charges shall be based upon the measured or
reasonably estimated cost of service and the equitable sharing of those costs
between customers based upon the cost of providing the service received by the
customer, including a reasonable plant-in-service depreciation expense. The
rates and charges shall be adopted by the electric, natural gas, telephone
cooperative, or political subdivision’s governing board or body and, in the
case of the municipally operated public utility, by municipal ordinance to be
effective not sooner than 45 days after adoption. The 45-day waiting period may
be waived by public vote of the governing body if that body finds and declares
the public utility that is a political subdivision of the state to be in
financial distress such that the 45-day waiting period would be detrimental to
the ability of the utility to deliver continued and compliant public services:
Provided, That notice of intent
to effect a rate change shall be specified on the monthly billing statement of
the customers of the utility for the month next preceding the month in which
the rate change is to become effective and the utility governing body shall give
its customers and, in the case of a cooperative, its customers, members, and
stockholders, other reasonable notices as will allow filing of timely
objections to the proposed rate change and full participation in municipal rate
legislation through the provision of a public forum in which customers may
comment upon the proposed rate change prior to an enactment vote. The rates and
charges or ordinance shall be filed with the commission, together with any
information showing the basis of the rates and charges and other information as
the commission considers necessary. Any change in the rates and charges with
updated information shall be filed with the commission. If a petition, as set
out in §24-2-4b(c)(1), §24-2-4b(c)(2), or §24-2-4b(c)(3) of this code, is received and the
electric cooperative, natural gas cooperative or telephone cooperative or
municipality has failed to file with the commission the rates and charges with
information showing the basis of rates and charges and other information as the
commission considers necessary, the suspension period limitation of 120 days
and the 100-day period limitation for issuance of an order by a hearing
examiner, as contained in §24-2-4b(d) and §24-2-4b(e) of this code, is tolled until the
necessary information is filed. The electric cooperative, natural gas
cooperative, telephone cooperative or municipality shall set the date when any
new rate or charge is to go into effect.
(c)
The commission shall review and approve or modify the rates and charges of
electric cooperatives, natural gas cooperatives, telephone cooperatives, or
municipal electric or natural gas utilities and municipally owned water
and/or sewer utilities that are political subdivisions of the state and having
less than four thousand five hundred 4,500 customers or annual
combined revenues of less than $3 million dollars upon the filing of a petition
within 30 days of the adoption of the ordinance or resolution changing the
rates or charges by:
(1)
Any customer aggrieved by the changed rates or charges who presents to the
commission a petition signed by not less than 25 percent of the customers
served by the municipally operated electric or natural gas public
utility or municipally owned water and/or sewer utility or 25 percent of the
membership of the electric, natural gas or telephone cooperative residing
within the state;
(2)
Any customer who is served by a municipally owned electric or natural
gas public utility and who resides outside the corporate limits and who is
affected by the change in the rates or charges and who presents to the
commission a petition alleging discrimination between customers within and
without the municipal boundaries. The petition shall be accompanied by evidence
of discrimination; or
(3)
Any customer or group of customers of the municipally owned electric or
natural gas public utility who is affected by the change in rates who reside
within the municipal boundaries and who present a petition to the commission
alleging discrimination between a customer or group of customers and other
customers of the municipal utility. The petition shall be accompanied by
evidence of discrimination.
(d)
(1) The filing of a petition with the commission signed by not less than 25
percent of the customers served by the municipally owned electric or
natural gas public utility or a municipally owned water and/or sewer utility having
less than four thousand five hundred 4,500 customers or annual
combined gross revenues of less than $3 million dollars or 25 percent of the
membership of the electric, natural gas, or telephone cooperative residing
within the state under §24-2-4b(c) of this code shall suspend the
adoption of the rate change contained in the ordinance or resolution for a
period of 120 days from the date the rates or charges would otherwise go into
effect or until an order is issued as provided herein.
(2) Upon sufficient showing of discrimination by customers outside the municipal boundaries or a customer or a group of customers within the municipal boundaries under a petition filed under §24-2-4b(c)(2) or §24-2-4b(c)(3) of this code, the commission shall suspend the adoption of the rate change contained in the ordinance for a period of 120 days from the date the rates or charges would otherwise go into effect or until an order is issued as provided herein. A municipal rate ordinance enacted pursuant to the provisions of this section and municipal charter or state code that establishes or proposes a rate increase that results in an increase of less than 25 percent of the gross revenue of the utility shall be presumed valid and rates shall be allowed to go into effect, subject to refund, upon the date stated in that ordinance. Any refund determined to be due and owing as a result of any difference between any final rates approved by the commission and the rates placed into effect subject to refund shall be refunded as a credit against each customer’s account for a period of up to six months after entry of the commission’s final order. Any remaining balance which is not fully credited by credit within six months after entry of the commission’s final order shall be directly refunded to the customer by check. In the case of rates established or proposed that increase by more than 25 percent of the gross revenue of the municipally operated public utility, the utility may apply for, and the commission may grant, a waiver of the suspension period and allow rates to be effective upon enactment.
(e) The commission shall forthwith appoint a hearing examiner from its staff to review the grievances raised by the petitioners. The hearing examiner shall conduct a public hearing and shall, within 100 days from the date the rates or charges would otherwise go into effect, unless otherwise tolled as provided in §24-2-4b(b) of this code, issue an order approving, disapproving, or modifying, in whole or in part, the rates or charges imposed by the electric, natural gas or telephone cooperative or by the municipally operated public utility pursuant to this section.
(f) Upon receipt of a petition for review of the rates under the provisions of §24-2-4b(c) of this code, the commission may exercise the power granted to it under the provisions of §24-2-3 of this code, consistent with the applicable rate provisions of, §8-19-4 of this code, and §16-13-16 of this code. The commission may determine the method by which the rates are reviewed and may grant and conduct a de novo hearing on the matter if the customer, electric, natural gas, or telephone cooperative or municipality requests a hearing.
(g)
The commission may, upon petition by an electric, natural gas or telephone
cooperative or municipal electric or natural gas public utility or a
municipally owned water and/or sewer utility, having less than four thousand
five hundred 4,500 customers or annual combined gross revenues of
less than $3 million dollars allow an interim or emergency rate to take effect,
subject to refund or future modification, if it is determined that the interim
or emergency rate is necessary to protect the municipality from financial
hardship attributable to the purchase of the utility commodity sold, or the
commission determines that a temporary or interim rate increase is necessary
for the utility to avoid financial distress. In such cases, the commission
shall waive the 45-day waiting period provided for in §24-2-4b(b) of this code and
the 120-day suspension period provided for in §24-2-4b(d) of this code.
(h) The commission shall, upon written request of the governing body of a political subdivision, provide technical assistance to the governing body in its deliberations regarding a proposed rate increase.
(i) Notwithstanding any other provision, the commission has no authority or responsibility with regard to the regulation of rates, income, services or contracts by municipally operated public utilities for services which are transmitted and sold outside of the State of West Virginia.
(j)
Notwithstanding any other provision of this code to the contrary, the
jurisdiction of the commission over water and/or sewer utilities that are
political subdivisions of the state and having at least four thousand
five hundred 4,500 customers and annual gross combined revenues of
$3 million dollars or more shall be limited to those powers enumerated
in §24-2-1(b) of this code.
(k) Notwithstanding any other provision of this code to the contrary, the jurisdiction of the commission does not extend over the setting and adjustment of the rates, fees, and charges of municipal power systems. The rates, fees, charges and ratemaking process of municipal power systems shall be governed by the provisions of §8-19-2a of this code.