H.B. 3280
(Delegates Staton, Browning, Pino, Varner,
Ennis, Yost and DeLong)
[Introduced March 25, 2005; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §16-13A-25 of the Code of West
Virginia, 1931, as amended; and to amend and reenact §24-2-11
of said code, all relating to modifying the review by the
Public Service Commission of public convenience and necessity
applications where the project has been approved by
Infrastructure and Jobs Development Council; removing the
necessity for public service districts to prefile with the
public service commission; providing for a waiver of thirty
day notice requirement for projects approved by the
Infrastructure and Jobs Development Council; providing that
the public service commission render a final decision on
infrastructure and jobs development council
approved
applications; providing that infrastructure and jobs
development council
approved projects receiving a certificate
of public convenience may not be compelled to reopen
.
Be it enacted by the Legislature of West Virginia:
That §16-13A-25 of the code of West Virginia, 1931, as
amended, be amended and reenacted; and that §24-2-11 of said code be amended and reenacted, all to read as follows:
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 13A. PUBLIC SERVICE DISTRICTS.
§16-13A-25. Borrowing and bond issuance; procedure.
(a) Notwithstanding any other provisions of this article to
the contrary, a public service district may not borrow money, enter
into contracts for the provision of engineering, design or
feasibility studies, issue or contract to issue revenue bonds or
exercise any of the powers conferred by the provisions of section
thirteen, twenty or twenty-four of this article, without the prior
consent and approval of the Public Service Commission.
(b) The Public Service Commission may waive the provision of
prior consent and approval for entering into contracts for
engineering, design or feasibility studies pursuant to this section
for good cause shown which is evidenced by the public service
district filing a request for waiver of this section stated in a
letter directed to the commission with a brief description of the
project, a verified statement by the board members that the public
service district has complied with chapter five-g of this code, and
further explanation of ability to evaluate their own engineering
contract, including, but not limited to:
(1) Experience with the same engineering firm; or
(2) completion of a construction project requiring engineering
services. The district shall also forward an executed copy of the
engineering contract to the commission after receiving approval of the waiver.
(c) An engineering contract that meets one or more of the
following criteria is exempt from the waiver or approval
requirements:
(1) A contract with a public service district that is a Class
A utility on the first day of April, two thousand three, or
subsequently becomes a Class A utility as defined by commission
rule;
(2) A contract with a public service district that does not
require borrowing and that can be paid out of existing rates;
(3) A contract where the payment of engineering fees are
contingent upon the receipt of funding, and commission approval of
the funding, to construct the project which is the subject of the
contract; or
(4) A contract that does not exceed fifteen thousand dollars.
(d) Requests for approval or waivers of engineering contracts
shall be deemed granted thirty days after the filing date unless
the staff of the Public Service Commission or a party files an
objection to the request. If an objection is filed, the Public
Service Commission shall issue its decision within one hundred
twenty days of the filing date. In the event objection is received
to a request for a waiver, the application shall be considered a
request for waiver as well as a request for approval in the event
a waiver is not appropriate.
(e) Unless the properties to be constructed or acquired
represent ordinary extensions or repairs of existing systems in the usual course of business, a public service district must first
obtain a certificate of public convenience and necessity from the
Public Service Commission in accordance with the provisions of
chapter twenty-four of this code, when a public service district is
seeking to acquire or construct public service property.
Thirty days prior to making formal application for the certificate,
the public service district shall prefile with the Public Service
Commission its plans and supporting information for the project in
a manner prescribed by Public Service Commission rules and
regulations.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.
§24-2-11. Requirements for certificate of public convenience and
necessity.
(a)
No public utility, person or corporation shall begin the
construction of any plant, equipment, property or facility for
furnishing to the public any of the services enumerated in section
one, article two of this chapter, nor apply for, nor obtain any
franchise, license or permit from any municipality or other
governmental agency, except ordinary extensions of existing systems
in the usual course of business, unless and until it shall obtain
from the Public Service Commission a certificate of public
convenience and necessity requiring authorizing such construction.
franchise, license or permit
(b) Upon the filing of any application for such certificate, and after hearing, the commission may, in its discretion, issue or
refuse to issue, or issue in part and refuse in part, such
certificate of convenience and necessity: Provided, That the
commission, after it gives proper notice and if no protest is
received within thirty days after the notice is given, may waive
formal hearing on the application. Notice shall be given by
publication which shall state that a formal hearing may be waived
in the absence of protest, made within thirty days, to the
application. The notice shall be published as a Class I legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code. The publication area shall be the
proposed area of operation.
(c) Any public utility, person or corporation subject to the
provisions of this section shall give the commission at least
thirty days' notice of the filing of any such application for a
certificate of public convenience and necessity under this section:
Provided, That the commission may modify or waive the thirty-day
notice requirement and shall waive the thirty day notice
requirement for projects approved by the infrastructure and jobs
development council.
(d) The commission shall render its final decision on any
application filed after the thirtieth day of June, one thousand
nine hundred eighty-one, under the provisions of this section or
section eleven-a of this article within two hundred seventy days of
the filing of the application and within ninety days after final
submission of any such application for decision following a hearing:
(e) The commission shall render its final decision on any
application filed under the provisions of this section and that has
received the approval of the
Infrastructure and Jobs Development
Council pursuant to article fifteen-A of chapter thirty-one of this
code
, within one hundred-eighty days after filing of the
application: Provided, that if a protest is received within thirty
days after the notice
is provided pursuant to subsection (b), the
commission shall render its final decision within two hundred
seventy days of the filing of the application.
(f) If the projected total cost of the
a project which is the
subject of an application filed pursuant to this section or section
eleven-a of this article
is greater than fifty million dollars, the
commission shall render its final decision on any such application
filed under the provisions of this section or section eleven-a of
this article within four hundred days of the filing of the
application and within ninety days after final submission of any
such application for decision after a hearing.
(g) If such a decision is not rendered within the
aforementioned one hundred eighty-days, two hundred seventy days,
four hundred days or ninety days, the commission shall issue a
certificate of convenience and necessity as applied for in the
application.
(h) The commission shall prescribe such rules and regulations
as it may deem proper for the enforcement of the provisions of this
section; and, in establishing that public convenience and necessity do exist, the burden of proof shall be upon the applicant.
(b)(i) Pursuant to the requirements of subsection (a) of this
section the commission may issue a certificate of public
convenience and necessity to any intrastate pipeline, interstate
pipeline, or local distribution company for the transportation in
intrastate commerce of natural gas used by any person for one or
more uses, as defined, by rule, by the commission in the case of
(1) Natural gas sold by a producer, pipeline or other seller
to such person; or
(2) Natural gas produced by such person.
(j) A public utility which has received a certificate of
public convenience and necessity from the commission and has been
approved by the infrastructure and jobs development council, is not
required to, and cannot be compelled to, reopen the proceeding if
the cost of the project changes but the change does not effect the
rates established for the project.
NOTE: The bill shortens the time period during which the
Public Service Commission must complete a review of an application
for a certificate of public convenience and necessity when the
subject project has received the approval of the Infrastructure and
Jobs Development Council. Further, PSC review may not include an
engineering review if such an engineering review was conduced by
either the Bureau of Public Health or the Department of
Environmental Protection. Additionally, when a public utility has
been awarded a certificate of public convenience and necessity from
the PSC and the project has been approved by the infrastructure and
jobs development council, the public utility is not required to,
and cannot be compelled to, reopen the proceeding if the cost of
the project changes but such change does not effect the rates
established for the project. Finally, the bill also deletes the 30
day pre-filing requirement for public service districts as provided by §16-13A-25.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.