NOTICES
Petition of the Borough of Sandy Lake for a Declaratory Order
[41 Pa.B. 4927]
[Saturday, September 10, 2011]Public Meeting held
August 25, 2011Commissioners Present: Robert F. Powelson, Chairperson; John F. Coleman, Jr., Vice Chairperson; Wayne E. Gardner; James H. Cawley; Pamela A. Witmer
Petition of the Borough of Sandy Lake for a Declaratory Order that its Provision of Water Service to Isolated Customers in Sandy Lake Township Does Not Constitute the Provision of Public Utility Service Under 66 Pa.C.S. § 102; Doc. No. P-2011-2224488
Tentative Order By the Commission
On February 2, 2011, the Borough of Sandy Lake (the Borough or Sandy Lake), 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 Bureau of Investigation and Enforcement (BI&E), the Office of Small Business Advocate (OSBA), and on each of the twenty-four customers affected that are located outside of Sandy Lake's corporate boundaries. None of the above-mentioned parties filed answers to Sandy Lake'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 twenty-four 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 twenty-four 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 twenty-four 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 twenty-one extra-territorial residential customers since 1934, when the Borough purchased the water supply system from Sandy Lake Water Works. The remaining three extra-territorial customers consist of buildings for the Lakeview Consolidated Schools, the school district for the Sandy Lake area, and a gas station located next to the schools, which have been served since 1952. 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 reside in close proximity to the Borough. These extra-territorial customers are primarily residential. To date, the Borough has never received a formal complaint from any customer. The extra-territorial residential customers have been provided service because they had been receiving service when Sandy Lake acquired the system in 1934. There are no other public or private water service options available for these residential customers, other than the possibility of private wells. The two schools and the gas station nearly abut the Borough's boundary lines. These three non-residential customers have received service since 1952. No extra-territorial customers have been added to the system since 1952. 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 extra-territorial customers 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 January 5, 2011 Borough Resolution that it will not, unless directed by a Pennsylvania regulatory agency, permit any new customer connections beyond its municipal boundaries without the prior approval of the Commission. In addition, the Borough's resolution provides that the Borough will apply the same rates, terms, and conditions to the customers outside as those within the Borough's 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 twenty-four extra-territorial customers will not be subject to potential discrimination without the opportunity for Commission oversight.
The Borough's 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.
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); and Drexelbrook Assoc. v. Pa. Public Utility Commission, 212 A.2d 237, 240 (Pa. 1965) (Service to a defined, privileged, and limited group is not public utility service).
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 to seventy-five customers outside the Cochranton Borough limits did not constitute public utility service. Sandy Lake's petition in this proceeding comports with these two recent proceedings, and therefore Sandy Lake'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 tentatively 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 or offered to the general public. The Borough clearly states that it will continue to provide service only to the twenty-four customers that it is presently serving outside of its boundaries and that it is not soliciting additional customers. Such service does not constitute the extra-territorial 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 and terms of service outside as well as within the Borough's limits.
Still, we will not cancel the operating authority of Sandy Lake Borough without allowing for one additional opportunity for comment. Parties may file adverse comments with the Commission no later than twenty days after publication of this Order in the Pennsylvania Bulletin.
Under these circumstances, and absent any contrary responses from concerned parties, no certificate of public convenience is needed by the Borough and this Commission will cancel the operating authority issued to Sandy Lake Borough; Therefore,
It Is Ordered That:
1. The Petition for Declaratory Order filed by Sandy Lake Borough on February 2, 2011, at Docket No. P-2011-2224488 is hereby granted, consistent with this Order.
2. The provision of water service by Sandy Lake Borough to the twenty-four 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 the Office of Consumer Advocate, Bureau of Investigation and Enforcement, the Office of Small Business Advocate, Sandy Lake Borough, and upon each of the Borough's twenty-four 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. Sandy Lake Borough is directed to publish in a newspaper of general circulation in the Sandy Lake area, notice of this Tentative Order and of the Commission's intent to cancel the Sandy Lake Borough certificate of public convenience absent adverse public comment within the twenty-day time constraint established in the Pennsylvania Bulletin.
6. 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 Sandy Lake Borough and mark this file as closed. The Secretary's Bureau then shall remove Sandy Lake Borough from the active lists of the Tariff and Annual Report Section of the Commission'sBureau of Technical Utility Services and the Assessment Section of the Bureau of Administrative Services.
ROSEMARY CHIAVETTA,
Secretary
[Pa.B. Doc. No. 11-1580. Filed for public inspection September 9, 2011, 9:00 a.m.]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
