NOTICES
Tentative Order
[40 Pa.B. 3927]
[Saturday, July 10, 2010]Public Meeting held
June 16, 2010Commissioners Present: James H. Cawley, Chairperson; Tyrone J. Christy, Vice Chairperson; Wayne E. Gardner; Robert F. Powelson
Petition of the Borough of Pleasantville for a
Declaratory Order that its Provision of Water Service to
Isolated Customers in Adjoining Townships Does Not Constitute the Provision of Public Utility Service Under
66 Pa.C.S. § 102; Doc. No. P-2010-2157896
Tentative Order By the Commission:
On February 12, 2010, the Borough of Pleasantville (the Borough or Pleasantville), filed the above-captioned petition for declaratory order. In accordance with 52 Pa. Code § 5.42, the Borough served a copy of its petition on the Office of Consumer Advocate (''OCA''), the Office of Trial Staff (''OTS''), the Office of Small Business Advocate (''OSBA''), and notified each of the 193 customers affected located outside of Pleasantville's corporate boundaries of the petition by means of a bill insert. None of the above-mentioned parties filed answers to Pleasantville's petition.
Section 331(f) of the Public Utility Code, 66 Pa.C.S. § 331(f), provides that the Commission ''may issue a declaratory order to terminate a controversy or remove uncertainty.'' By its petition, the Borough seeks a determination that its provision of water service to the 193 customers that are physically proximate to the Borough, but not within the corporate boundaries of the Borough, is not subject to Commission jurisdiction. The Borough asserts that the service it provides to these 193 customers is not service ''to or for the public'' within the meaning of Section 102 of the Public Utility Code, 66 Pa.C.S. § 102.
In its petition, the Borough states that the 193 customers outside of the Borough's corporate limits take service at the same rates and terms of service as customers that reside inside Borough boundaries.
Furthermore, the Borough notes that it has been serving the 193 extra-territorial customers commencing with a contamination event in 1964 in response to direction from the Pennsylvania Board of Health (precursor to the current Pennsylvania Department of Health). We agree that under these circumstances, it is appropriate to issue a Declaratory Order in response to the subject petition.
In support of its petition, the Borough states that it is currently subject to the Commission's jurisdiction and complies with the Commission's reporting and tariff requirements. The Borough states that these requirements are unreasonably burdensome given the Borough's already limited financial resources. The Borough seeks to avoid these requirements, but at the same time retain service to the existing extra-territorial customers.
In its petition, the Borough alleges that all of the extra-territorial customers in question are proximate to the Borough. In response to the contamination event, the Borough opted to receive service from the City of Titusville (''Titusville''), approximately six miles from the Borough. A water main was laid from Titusville to the Borough, which intersects two adjacent townships; Oil Creek Township, Venango County, and Oil Creek Township, Crawford County. The Borough serves 139 extra-territorial customers in Oil Creek Township, Venango County. The Borough serves approximately twenty-five customers in Oil Creek Township, Crawford County. The Borough also serves, on average, twenty-nine customers within Allegheny Township, Venango County.
These extra-territorial customers are primarily residential. All of these extra-territorial customers reside in close proximity to the Borough and/or the Borough's water main connecting to Titusville. To date, the Borough has never received a formal complaint from any customer. These extra-territorial customers were allowed to hook up because of the contamination event and a dearth of other available service options. The Borough provides and maintains fire hydrants that protect all of the extra-territorial customers.
In further support of its petition, the Borough states that the extra-territorial customers did not, and still do not, have a right to connect to Borough's system; rather the only persons who had, and still have, any right to connect to the Borough's water system are property owners located within the Borough's municipal limits.
The Borough also states in a February 10, 2010 Borough Resolution that it will not, unless directed by a Pennsylvania regulatory agency (such as the Commission or the Pennsylvania Department of Environmental Protection (''DEP''), etc.), permit any new customer connections, for which an alternative service option exists, beyond its municipal boundaries. In addition, the Borough's resolution provides that the Borough will apply the same rules, regulations, and rates to the customers outside as those within Borough limits. The Borough Resolution also states that the Borough will not repeal or sunset the aforementioned resolution without advising the Commission regarding same. These commitments were made to ensure that the Borough will not be adding additional extra-territorial customers and that the 193 extra-territorial customers will not be subject to potential discrimination without the opportunity for Commission oversight.
The Borough submits that its circumstances are similar to those presented to the Commission in the matter of Lehigh Valley Cooperative Farmers v. City of Allentown, 54 Pa.P.U.C. 495 (1980), wherein the Commission concluded that service to a number of isolated individuals outside of the municipal boundaries under special circumstances did not constitute public utility service subject to the Commission's jurisdiction. We agree.
In Lehigh Valley, the Commission reiterated that the test to determine whether a party is rendering service to the public is set forth in Borough of Ambridge v. Pa. Public Service Commission, 165 A. 47 (Pa. Super. 1933). In Ambridge, the Commission noted,
We find the distinction between public and private rendition of such service put definitely on the readiness to serve all members of the public to the extent of capacity: The test is, therefore whether or not such person holds himself out, expressly or impliedly, as engaged in the business of supplying his product or service to the public, as a class, or to any limited portion of it, as contradistinguished from holding himself out as serving or ready to serve only particular individuals. The public or private character of the enterprise does not depend, however, upon the number of persons by whom it is used, but upon whether or not it is open to the use and service of all members of the public who may require it, to the extent of its capacity; and the fact that only a limited number of persons may have occasion to use it does not make it a private undertaking if the public generally has a right to such use.See also, Petition of Chicora Borough, Docket No. P-00981355 (May 22, 1998).
More recently, the Commission applied the same rationale in Joint Application of Seven Fields Development Corporation, Docket No. A-220007 and A-210062F2000 (October 1, 1999). In that case, the Commission granted an application filed by a jurisdictional utility seeking to transfer its assets used in the operation of its water system to the Borough of Seven Fields. The Commission noted that the borough would be providing water service to three customers that were located outside of the borough's limits. Moreover, the Commission took note of the fact that the borough committed to continue providing water service solely to these three customers at the same terms of service as are or will be offered to customers within the boundaries of the borough. Also, as in the instant case, the Borough of Seven Fields presented an affidavit to the effect that it did not intend to offer service to the general public outside of its boundaries in the future. In the Seven Fields case, the Commission concluded that the limited nature of water service to such a defined group of customers should not realistically be subject to its jurisdiction. Id. at p.4.
Similarly, and more recently, in Petition of Laceyville Borough, Docket No. P-2008-2064117 (2008), the Commission determined that service of seventeen customers outside the Laceyville Borough limits did not constitute public utility service. Even more recently, in Petition of Cochranton Borough for a Declaratory Order, Docket No. P-2008-2035741 (2009), the Commission determined that service seventy-five customers outside the Cochranton Borough limits did not constitute public utility service. Pleasantville's petition in this proceeding comports with these two recent proceedings, and therefore Pleasantville's petition should be resolved on a similar basis.
In applying the standards enunciated in Laceyville and Cochranton to the facts of the present case, we find that the limited extra-territorial service provided by the Borough is not subject to Commission jurisdiction. The extra-territorial service being provided by the Borough is provided to a limited number of customers and is not available to the general public. The Borough did not seek these extra-territorial customers but agreed to provide service to them when the customers' ground water source was found to be contaminated. Moreover, the Borough clearly states that it will continue to provide service only to the 193 customers that it is presently serving outside of its boundaries and that it is not soliciting additional customers. Such service does not constitute the provision of water service to or for the public. We note our expectation that an express condition of this exemption is that the Borough continue to apply the same rates outside as well as within Borough limits. Finally, however, we find that paragraph three of the Borough's resolution indicating that ''[t]he Borough will not, unless directed by a Pennsylvania regulatory agency, permit any new customer connections, for which an alternative service option exists, beyond its municipal boundaries,'' is insufficient to grant Pleasantville's petition. For the Commission to grant Pleasantville's petition, Pleasant- ville must revise this language of its resolution to read ''[t]he Borough will not, unless directed by a Pennsylvania regulatory agency, permit any new customer connections beyond its municipal boundaries, without the prior approval of the PUC.''
Under these circumstances, no certificate of public convenience is needed by the Borough and, absent any contrary responses from concerned parties, this Commission will cancel the operating authority issued to Pleasantville Borough; Therefore,
It Is Ordered That:
1. The Petition for Declaratory Order filed by Pleasantville Borough on February 12, 2010, at Docket No. P-2010-2157896 is hereby granted, consistent with this Order.
2. The provision of water service by Pleasantville Borough to the 193 customers located outside of the Borough's boundaries is deemed to be non-jurisdictional because it is not service ''to or for the public'' within the meaning of Section 102 of the Public Utility Code, 66 Pa.C.S. § 102.
3. A copy of this Order shall be served upon Pleasantville Borough and upon each of the Borough's 193 extra-territorial customers.
4. The Secretary shall certify this Order and deposit it with the Legislative Reference Bureau for publication in the Pennsylvania Bulletin.
5. Pleasantville Borough is directed to publish in a newspaper of general circulation in the Pleasantville area, notice of this Tentative Order and of the Commission's intent to cancel the Pleasantville Borough certificate of public convenience absent adverse public comment within the twenty-day time constraint established in the Pennsylvania Bulletin.
6. The Borough of Pleasantville must revise paragraph three of its resolution dated February 9, 2010, to read ''[t]he Borough will not, unless directed by a Pennsylvania regulatory agency, permit any new customer connections beyond its municipal boundaries, without the prior approval of the PUC.''
7. If no objection to this Order is filed with the Commission within twenty days of the publication date in the Pennsylvania Bulletin, this Order shall become final, and the Commission's Secretary's Bureau shall cancel the operating authority of Pleasantville Borough and mark this file as closed. The Secretary's Bureau then shall remove Pleasantville Borough from the active lists of the Tariff and Annual Report Section of the Commission's Bureau of Fixed Utility Services and the Assessment Section of the Bureau of Audits.
ROSEMARY CHIAVETTA,
Secretary
[Pa.B. Doc. No. 10-1266. Filed for public inspection July 9, 2010, 9:00 a.m.]
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