SB 10 — Relating generally to PSC jurisdiction

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 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, 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 of this article as if the certificate of public convenience and necessity for such facility were a siting certificate issued under said section 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) of this subsection.

(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 of this article 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 of this article 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) of this subsection.

(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 subdivision (5) of this subsection 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 of this article 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 of this article 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) of this subsection.

(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 of this article in lieu of a certificate of public convenience and necessity for the modification pursuant to the provisions of section eleven of this article and, except for the provisions of section eleven-c of this article, 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 of this article 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 of this article 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 and twelve-a, article two, chapter twenty-four of this code if all entities involved in the transaction are under common ownership.

(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;

of this code, except that the Public Service Commission willhas have no jurisdiction over the provision of stormwaterstorm water services by a public service district;

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 mayconsiders deem appropriate over the operation, ratesrates, and charges of suchthe producer and for suchthe length of time as the commissioncommission  mayconsiders consider to be proper. 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 4,500 customers and annual combined gross revenues of $3 million or more that are political subdivisions of the state is limited to:

(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 4,500 customers and annual combined gross revenues of $3 million or more that are political subdivisions of the state is limited to:

(2) Regulation of measurements, practices, actsacts, or services, as granted and described in §24-2-7 of this code;

(5) Authority to subpoena witnesses, take testimony, and administer oaths to any witness in any proceeding before,before or conducted by,by the commission, as granted and described in §24-2-10 of this 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 areasareas, 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 saidthe dispute within 120 days of filing.

The 120-day120 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,Provided 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’scommission's exercise of the powers enumerated in this sectionsection, and the commission shall resolve these complaints.

(2) SaidThe area can be provided with utility service by a utility which operates in a state adjoining West Virginia;

(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 willshall be so designated prior to commercial operation of the facility, and for which suchthe facilityfacility, the ownerowner, or operator holds a certificate of public convenience and necessity issued by the commission on or before July 1, 2003, shall be subject to §24-2-11c(e)§24-2-11c through(e), §24-2-11c(j)(f), (g), (h), (i) and (j), of this code as if the certificate of public convenience and necessity for such facility were a siting certificate issued under §24-2-11c(e)that throughsection §24-2-11c(j) of this code and shallare not otherwise be subject to the jurisdiction of the commission or to the provisions of this chapter with respect to suchthe facility except for the making or constructing of a material modification thereof as provided in §24-2-1(d)(5)subdivision (5) of this code.subsection.

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 §24-2-11c(e)§24-2-11c through(e), §24-2-11c(j)(f), (g), (h), (i) and (j), of this codecode, and shallis not otherwise be subject to the jurisdiction of the commission or to the provisions of this chapter with respect to suchthe facility except for the making or constructing of a material modification thereof as provided in §24-2-1(d)(5)subdivision (5) of this code.subsection.

(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, shallis not be subject to the jurisdiction of the commission or to the provisions of this chapter with respect to such facility, regardless of whether suchthe facility subsequent to its construction has been or will be designated as an exempt wholesale generator under applicable federal law:

Provided, That suchthe owner or operator shallis be subject to §24-2-1-(d)(5)subdivision (5) of this codesubsection if a material modification of suchthe facility is made or constructed.

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 shallis be subject to §24-2-11c(e)§24-2-11c through(e), §24-2-11c(j)(f), (g), (h), (i) and (j), of this codecode, and shallis not otherwise be subject to the jurisdiction of the commission or to the provisions of this chapter with respect to suchthe facility except for the making or constructing of a material modification thereof as provided in §24-2-1(d)(5)subdivision (5) of this code.subsection.

(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 facilityfacility, or an earlier material modification thereof, obtain a siting certificate for the modification from the commission pursuant to the provisions of §24-2-11c of this code in lieu of a certificate of public convenience and necessity for the modification pursuant to the provisions of §24-2-11 of this code and, except for the provisions of §24-2-11c of this code, shallis not otherwise be subject to the jurisdiction of the commission or to the provisions of this chapter with respect to such modification.

(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 subsectionsubsection, shalldo not be deemed to affect or limit the commission’scommission's jurisdiction over contracts or arrangements between the owner or operator of suchthe facility and any affiliated public utility subject to the provisions of this chapter.

(e) The commission shalldoes not have jurisdiction of Internet protocol-enabled service or voice-over Internet protocol-enabled service.service.  As used in this subsection:

As used in this subsection:

(f) Notwithstanding any other provisions of this article, the commission shalldoes not have jurisdiction to review or approve any transaction involving a telephone company otherwise subject to §24-2-12 and §24-2-12a of this code if all entities involved in the transaction are under common ownership.

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. systems. Further, the jurisdiction of the Public Service Commission over municipal power systems is limited to that granted specifically in this code.

Further, the jurisdiction of the Public Service Commission over municipal power systems is limited to that granted specifically in this code.

 (a)(a) The commission is hereby given power to may investigate all rates, methods,methods and practices of public utilities subject to the provisions of this chapter;

and to require copies of all reports, rates, classifications, schedules,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 change any intrastate rate, charge,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,regulated by or pursuant to,to an act of Congress and may prescribe a rate, charge,charge or toll that is just and reasonable, and change or prohibit any practice, device,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,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,modified or revoked by order or decree of a court of competent jurisdiction:

“Emergency"Emergency shelter provider”provider" means any nonprofit entity which provides temporary emergency housing and services to the homeless or to victims of domestic violence or other abuse.

The rates, fees, charges and rate-makingratemaking process of municipal power systems is governed by the provisions of §8-19-2a of this code.

 (a)(a) The commission shall have power to may enforce, originate, establish, change,change and promulgate tariffs, rates, joint rates, tolls,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 4,500four thousand five hundred customers and annual combined gross revenues of $3 million 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 4,500 customers or annual combined gross revenues of less than $3 million, 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)subsection (b) of this code.section.

And whenever the commission, shall after hearing, find finds any existing rates, tolls, tariffs, joint rates,rates or schedules enacted or maintained by a utility regulated under the provisions of this section to be unjust, unreasonable, insufficient,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,tolls or schedules to be followed in the future in lieu of those found to be unjust, unreasonable, insufficient,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 the 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 4,500 customers or annual combined gross revenue of less than $3 million 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,fees or charges for such service.

The 120-day120 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,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,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)(g) of this code.

Procedures for changing rates of electric and natural gas cooperatives, local exchange services of telephone cooperatives,cooperatives and municipally operated public utilities.

(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,customer and based primarily on the costs of providing these services.

The rates and charges shall be adopted by the electric, natural gas, telephone cooperative,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-day45 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-day45 day waiting period would be detrimental to the ability of the utility to deliver continued and compliant public services:

If a petition, as set out in §24-2-4b(c)(1),subdivision §24-2-4b(c)(2),(1), (2) or §24-2-4b(c)(3)(3), subsection (c) of this code,section, is received and the electric cooperative, natural gas cooperative,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-day100 day period limitation for issuance of an order by a hearing examiner, as contained in §24-2-4b(d)subsections (d) and §24-2-4b(e)(e) of this code,section, is tolled until the necessary information is filed.

(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 4,500 customers or annual combined gross revenues of less than $3 million or 25twenty-five percent of the membership of the electric, natural gas or telephone cooperative residing within the state under §24-2-4b(c)subsection (c) of this codesection shall suspend the adoption of the rate change contained in the ordinance or resolution for a period of 120one hundred twenty 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)subdivision (2) or §24-2-4b(c)(3)(3), subsection (c) of this code,section, 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.

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)subsection (b) of this code,section, issue an order approving, disapproving or modifying, in whole or in part, the rates or charges imposed by the electric, natural gas,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)subsection (c) of this section, 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 §8-10-2, §8-19-4 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,gas or telephone cooperative or municipality requests a hearing.

In such cases, the commission shall waive the 45-day45 day waiting period provided for in §24-2-4b(b)subsection (b) of this codesection and the 120-day120 day suspension period provided for in §24-2-4b(d)subsection (d) of this code.section.

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The purpose of this bill is to allow more local review and control over the setting of rates, fees and charges for, municipal electrical power systems.

The bill provides for a right of appeal by customers.

It also clarifies the Public Service Commission’s jurisdiction as modified by chapters one hundred sixty-one and two hundred nine, Acts of the Legislature, Regular Session, 2017 (HB3096 and SB180).

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.

§24-2-1 has been rewritten;

therefore, it has been completely underscored.

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