NOTICES
Tentative Order
[35 Pa.B. 5212] Public Meeting held
August 25, 2005Commissioners Present: Wendell F. Holland, Chairperson; James H. Cawley, Vice Chairperson; Bill Shane; Kim Pizzingrilli; Terrance J. Fitzpatrick
Franklin Manor Utilities, Ltd.; A-230116
Tentative Order By the Commission:
Franklin Manor Utilities, Ltd. (''Franklin Manor''), the owner and operator of a sewage treatment plant that serves certain residents of South Franklin Township, was issued a certificate of public convenience by the Commission on May 13, 1988, at A-230116. On June 20, 2005, the Pennsylvania Department of Environmental Protection (''DEP'') issued an Administrative Order to South Franklin Township requiring the Township to assume responsibility for the operation and maintenance of the sewage treatment plant as a result of Franklin Manor's failure to properly operate and maintain the plant. The order sets forth a lengthy history of Franklin Manor's non-compliance with DEP's regulations, the most severe of which has resulted in the discharge of untreated sewage from the plant causing pollution to waters of the Commonwealth in violation of Franklin Manor's National Pollutant Discharge Elimination System (''NPDES'') permit.
Prior to issuance of the June 20, 2005 order to the Township, DEP pursued protracted enforcement action against Franklin Manor issuing two prior orders to address the operation and maintenance problems at the sewage treatment plant and filing several actions in Commonwealth Court. According to the DEP order, Franklin Manor repeatedly ignored DEP's orders as well as those issued by Commonwealth Court, failed to take appropriate action to correct the situation, and failed to comply with its NPDES permit obligations. A recent DEP inspection revealed a continued failure of Franklin Manor to properly operate the plant resulting in continued discharge of untreated sewage from the plant. As a result, DEP determined that the imminent discharge of inadequately treated sewage into waters of the Commonwealth was a situation requiring immediate remedial action and ordered the Township to take over operation of the plant within five (5) days of the date of receipt of the June 20, 2005 Order.
While the Township is not opposed to taking over operation of the sewage treatment plant, the Township has filed an appeal from DEP's order. One of the issues raised on appeal is that the plant is currently subject to the Commission's jurisdiction and therefore, the Township has no legal authority to operate and maintain the facility. Additionally, as long as Franklin Manor holds a certificate of public convenience allowing it to operate the plant, the Township is unable to finance the operation, maintenance and repair of the system by establishing rates and charging and collecting user fees.
A certificate of public convenience is a privilege and not a contract or property right under which the holder acquires vested rights. Western Pennsylvania Water Company v. PUC, 311 A.2d 370 (Pa. Cmwlth. 1973). As such, a certificate of public convenience may be revoked where the utility fails to perform its essential service functions to the public. Accordingly, we take judicial notice of DEP's June 20, 2005 order, and based upon the findings set forth therein, we conclude that Franklin Manor is incapable and unwilling to operate the sewage treatment plant in a lawful manner and has failed to provide ''adequate, efficient, safe and reasonable service and facilities'' in accordance with its statutory duty under Section 1501 of the Public Utility Code. 66 Pa.C.S. § 1501. Given that the Township has been ordered to take over operation of the system to serve customers within the Township pursuant to DEP's order, we believe that it is appropriate to revoke Franklin Manor's certificate of public convenience without the necessity of first filing a formal complaint, and we tentatively conclude that revocation of Franklin Manor's certificate of public convenience pursuant to 66 Pa.C.S. § 1102(a)(2) is in the public interest. At the same time, revocation will not become effective until the Township legally and operationally is prepared to assume control of the sewage treatment system. Therefore,
It Is Ordered That:
1. Revocation of Franklin Manor's certificate of public convenience is hereby approved as being in the public interest.
2. The Secretary serve a copy of this Tentative Order upon Franklin Manor Utilities, Ltd., the Department of Environmental Protection Southwest Regional Counsel and Central Office Bureau of Regulatory Counsel, South Franklin Township, the Office of Consumer Advocate, the Office of Small Business Advocate, and the Office of Trial Staff; and also cause a copy of this Tentative Order to be published in the Pennsylvania Bulletin with a ten (10) day comment period.
3. Absent the filing of adverse public comment within ten (10) days after publication in the Pennsylvania Bulletin, this Tentative Order shall become final without further action by the Commission.
4. Upon this Order becoming final and without further action by the Commission, the certificate of public convenience held by Franklin Manor Utilities, Ltd. at A-230116 shall be cancelled consistent with the Township's resolution of its Appeal and an indication that it is ready to take over operation of the sewage treatment system.
JAMES J. MCNULTY,
Secretary
[Pa.B. Doc. No. 05-1759. Filed for public inspection September 16, 2005, 9:00 a.m.]
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