PROPOSED RULEMAKING
[52 PA. CODE CH. 67]
[L-00060177]
Service Interruption
[36 Pa.B. 6303]
[Saturday, October 14, 2006]The Pennsylvania Public Utility Commission (Commission), on May 4, 2006, adopted a proposed rulemaking order which amends Chapter 67 (relating to service outages) to include a definition of ''service interruption'' as it pertains to water utilities.
Executive Summary
Title 66 of the Pennsylvania Consolidated Statutes contains provisions that address a utility's character of services and its facilities. In addition, the statute also has provisions regarding the Commission's administrative authority and regulations. See 66 Pa.C.S. §§ 501 and 1501 (relating to general powers; and character of service and facilities). Specifically, 66 Pa.C.S. § 1501 provides:
Every public utility shall furnish and maintain adequate, efficient, safe, and reasonable service and facilities, and shall make all such repairs, changes, alterations, substitutions, extensions, and improvements in or to such service and facilities as shall be necessary or proper for the accommodation, convenience, and safety of its patrons, employees, and public. Such service also shall be reasonably continuous and without unreasonable interruptions or delay. . . .In addition, 66 Pa.C.S. § 501 provides:
(a) . . . In addition to any powers expressly enumerated in this part, the commission shall have full power and authority, and it shall be its duty to enforce, execute and carry out, by its regulations, orders, or otherwise, all and singular, the provisions of this part, and the full intent thereof; and shall have the power to rescind or modify any such regulations or orders . . .(b) . . . The commission may make such regulations, not inconsistent with law, as may be necessary or proper in the exercise of its powers or for the performance of its duties. . . .In early December 2005 there was a fluoride release incident at the Pennsylvania American Water Company's (PAWC) Yellow Breeches Water Treatment Plant in Fairview Township, Cumberland County. The incident affected approximately 34,000 customers of PAWC located in eastern Cumberland County and northern York County. As a result of the incident PAWC issued a ''Do Not Consume'' advisory.
By a December 23, 2005 order, Commission staff conducted an investigation into the cause of the high fluoride incident, the level of compliance by PAWC with the Public Utility Code and the Commission's regulations regarding safe and reliable water service, the applicable notification procedures, whether the problems were addressed and whether any improvements in the notification procedures were warranted. The Final Investigation Order and Release of Staff Report addressed the several areas of concern noted in the Commission's December 23, 2005 order specifically, the operational response of PAWC, the timeliness and adequacy of the public notice, the adequacy of alternative drinking water supplies, compliance with 52 Pa. Code § 67.1 (relating to notice to Commission), additional steps to inform and assist consumers, and the obligation to update emergency response plans.
The Commission's regulations provide that a utility shall notify the Commission by telephone within 1 hour after a preliminary assessment of conditions reasonably indicates that there is an unscheduled service interruption affecting 2,500 or 5%, whichever is less, of a utility's total customers in a single incident of 6 or more projected consecutive hours. 52 Pa. Code § 67.1(b).
In the context of the Commission's fluoride spill investigation, PAWC asserted that the term ''service interruption'' is not defined in the regulation and stated that the common understanding of this term requires an outage, supply cut off or cessation of service. PAWC contended that the incident did not result in the loss of service (i.e., customers had water that could be used for all purposes other than consumption). The Commission disagreed with PAWC's interpretation that the requirement in the Commission's regulations to notify the Commission of an incident by telephone is only triggered when there is a total outage of service.
The Commission formally commences this rulemaking to amend its regulations to clarify what the Commission deems a ''service interruption'' under § 67.1. The Commission proposes to provide clarity by noting that the term ''service interruption'' pertains to quantity and quality. The exact proposed language is set forth in Annex A.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on September 27, 2006, the Commission submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Committees. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Commission, the General Assembly and the Governor of comments, recommendations or objections raised.
Public Meeting held
May 4, 2006Commissioners Present: Wendell F. Holland, Chairperson; James H. Cawley, Vice Chairperson; Bill Shane; Kim Pizzingrilli; Terrance J. Fitzpatrick
Proposed Rulemaking for Revision to Chapter 67 of Title 52 of the PA Code Pertaining to Service Outages;
Docket No. L-00060177
Proposed Rulemaking Order By the Commission:
On March 10, 2006, the Commission adopted the Final Investigation Order and Release of Staff Report at Docket No. I-00050109 regarding the December 2005 fluoride release incident at the Pennsylvania American Water Company's (PAWC) Yellow Breeches Water TreatmentPlant in Fairview Township, Cumberland County. Pursuant to the March 10, 2006 Order, the Commission formally commences this rulemaking to amend our regulations to clarify what the Commission deems a ''service interruption'' under 52 Pa. Code § 67.1.
Background
By a December 23, 2005 order, Commission staff conducted an investigation into the cause of the high fluoride incident, the level of compliance by PAWC with the Public Utility Code and our Commission's regulations regarding safe and reliable water service and the applicable notification procedures. The investigation also addressed whether these procedures were complied with and whether any improvements in the notification procedures were warranted. As part of its inquiry, Commission staff met with representatives from the Department of Environmental Protection (DEP), the Cumberland County Emergency Management Services, PAWC and the Office of Consumer Advocate.
The Final Investigation Order and Release of Staff Report addressed several areas of concern noted in the Commission's December 23, 2005 order specifically, the operational response of PAWC, the timeliness and adequacy of the public notice, the adequacy of alternative drinking water supplies, compliance with 52 Pa. Code § 67.1 (Notice to Commission), additional steps to inform and assist consumers, and the obligation to update emergency response plans.
Discussion
This proposed rulemaking addresses the issue of notice to the Commission regarding service outages, 52 Pa. Code § 67.1. The Commission's regulations provide that a utility shall notify the Commission by telephone within one hour after a preliminary assessment of conditions reasonably indicates that there is an unscheduled service interruption affecting 2,500 or 5%, whichever is less, of a utility's total customers in a single incident of six or more projected consecutive hours. 52 Pa. Code § 67.1(b).
In the context of the fluoride spill investigation, PAWC asserted that the term ''service interruption'' is not defined in regulation and stated that the common understanding of this term requires an outage, supply cut off or cessation of service. PAWC contended that the incident did not result in the loss of service, (i.e., customers had water that could be used for all purposes other than consumption).
The Commission disagreed with PAWC's interpretation that the requirement in our regulations to notify the Commission of an incident by telephone is only triggered when there is a total outage of service. Water for consumption is the most vital and important aspect of service provided by a water utility and if consumers cannot drink it, then from their perspective and ours, service has been interrupted.
Chapter 67 (Service Outages) consists only of § 67.1 (General provisions). Section 67.1 uses the phrase ''service interruption'' but the phrase is not defined. In the March 10, 2006 Order, the Commission determined that is necessary to take the additional step of amending Commission regulations to ensure that regulated water utilities have a clear understanding of what the Commission deems a ''service interruption.''
In its March 10, 2006 Order, the Commission placed the water industry on notice that ''service interruption'' covers any interruption of service that affects the quantity or quality of water delivered to the customer. In arriving at that conclusion, the Commission took administrative notice that a similar DEP regulation defines a ''service interruption'' as ''affecting quantity or quality of the water delivered to the customer.'' 25 Pa. Code § 109.708 (emphasis added). As noted earlier, water for consumption is the most vital and important aspect of service provided by a water utility, and if consumers cannot drink it, then from their perspective, and the Commission's, service has been interrupted. In addition, since the Commission and DEP work closely on water related matters issues, the Commission finds it reasonable to have the same regulatory definition of ''service interruption.''
Therefore, the Commission proposes to amend § 67.1 as set forth in ''Annex A,'' to include a definition of ''service interruption'' as it pertains to water utilities.
Conclusion
The Commission seeks comment from the water industry and the statutory advocates, as well as from any other interested member of the public regarding the proposed change in our regulation. Interested parties will have 30 days from publication of this Order to file comments. Since the proposed amendment is concise and uncomplicated and we are committed to completing the amendment to our procedural regulations in a timely fashion, we will not provide for reply comments. Accordingly, pursuant to section 501 of the Public Utility Code, 66 Pa.C.S. § 501, the act of July 31, 1968 (P. L. 769, No. 240), known as the Commonwealth Documents Law, and regulations promulgated there under at 1 Pa. Code §§ 7.1--7.4, we amend the regulation as noted above and as set forth in Annex A; Therefore,
It Is Ordered That:
1. A rulemaking proceeding is hereby initiated at this docket to consider the revisions to Commission regulation in § 67.1 as set forth in Annex A.
2. The Secretary shall submit a copy of this order and Annex A to the Office of Attorney General for preliminary review as to form and legality.
3. The Secretary shall submit a copy of this order and Annex A to the Governor's Budget Office for review of fiscal impact.
4. The Secretary shall submit this order and Annex A for review and comments by the Independent Regulatory Review Commission and the designated Legislative Standing Committees.
5. The Secretary shall certify this order and Annex A and deposit them with the Legislative Reference Bureau to be published in the Pennsylvania Bulletin.
6. A copy of this order and Annex A shall be served upon the Office of Consumer Advocate, the Office of Small Business Advocate, the Office of Trial Staff, the central and regional offices of the Department of Environmental Protection, the Pennsylvania Chapter of the National Association of Water Companies and upon jurisdictional water and wastewater utilities.
7. Interested persons may submit an original and 15 copies of comments referencing the docket number of the proposed rulemaking within 30 days of publication in the Pennsylvania Bulletin to the Pennsylvania Public Utility Commission, Attn: Secretary, P. O. Box 3265, Harrisburg, PA 17105-3265. One copy of a diskette containing the comments in electronic format should also be submitted. A courtesy copy of written comments will be served upon the Commission's Law Bureau, Attn: Assistant Counsel Kimberly Hafner.
8. Comments should include any proposed language for revision and a clear explanation for the recommendation.
9. The contact person for this rulemaking is Kimberly Hafner, Assistant Counsel, Law Bureau, (717) 787-5000. Alternate formats of this document are available to persons with disabilities and may be obtained by contacting Sherri DelBiondo, Regulatory Coordinator, Law Bureau, (717) 772-4579.
JAMES J. MCNULTY,
SecretaryFiscal Note: 57-249. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 52. PUBLIC UTILITIES
PART I. PUBLIC UTILITY COMMISSION
Subpart C. FIXED SERVICE UTILITIES
CHAPTER 67. SERVICE OUTAGES § 67.1 General provisions.
(a) Electric, gas, water and telephone utilities holding certificates of public convenience under 66 Pa.C.S. §§ 1101 and 1102 (relating to organization of public utilities and beginning of service; and enumeration of acts requiring certificate) shall adopt the following steps to notify the Commission with regard to unscheduled service interruptions. The term ''service interruption,'' when pertaining to water service provided by a water utility under the Commission's jurisdiction, covers an interruption of service affecting the quantity or quality of water delivered to the customers.
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[Pa.B. Doc. No. 06-2019. Filed for public inspection October 13, 2006, 9:00 a.m.]
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