H. B. 4594
(By Delegates Boggs, White and Kominar)
[Introduced February 22, 2010; referred to the
Committee on Government Organization.]
A BILL to amend and reenact §24-2-1 of the Code of West Virginia,
1931, as amended, relating to the Public Service Commission
and regulation of railroads; providing that the jurisdiction
of the Public Service Commission to regulate railroads
terminate July 1, 2011, and transferring this authority to the
Department of Military Affairs and Public Safety
.
Be it enacted by the Legislature of West Virginia:
That §24-2-1 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.
§24-2-1. Jurisdiction of commission; waiver of jurisdiction.
(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; transmission of messages by telephone,
telegraph or radio; generation and transmission of electrical energy
by hydroelectric or other utilities for service to the public,
whether directly or through a distributing utility; supplying water,
gas or electricity, by municipalities or others; sewer systems
servicing twenty-five or more persons or firms other than the owner
of the sewer systems: Provided, That if a public utility intends
to provide sewer service by an innovative, alternative method, as
defined by the Federal Environmental Protection Agency, the
innovative, alternative method is a public utility function and
subject to the jurisdiction of the Public Service Commission
regardless of the number of customers served by the innovative,
alternative method; any public service district created under the
provisions of article thirteen-a, chapter sixteen of this code; toll
bridges, wharves, ferries; solid waste facilities; and any other
public service: Provided, however, That natural gas producers who
provide natural gas service to not more than twenty-five residential
customers are exempt from the jurisdiction of the commission with
regard to the provisions of such residential service: 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 may deem appropriate over
the operation, rates and charges of such producer and for such
length of time as the commission may consider to be proper: And
provided further, That the jurisdiction the commission may exercise
over the rates and charges of municipally operated public utilities
is limited to that authority granted the commission in section four-
b of this article: And provided further, That the decision-making
authority granted to the commission in sections four and four-a of
this article shall, in respect to an application filed by a public
service district, be delegated to a single hearing examiner
appointed from the commission staff, which hearing examiner shall
be authorized to carry out all decision-making duties assigned to
the commission by said sections, and to issue orders having the full
force and effect of orders of the commission.
(b) 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.
(c) 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.
(8) Notwithstanding any provision of this section, chapter or
code to the contrary, the authority of the Public Service Commission
to regulate railroads, regulate rates charged by railroads or charge
railroads fees shall terminate July 1, 2011. The authority to
regulate railroads, regulate rates charged by railroads or charge
railroads fees
is hereby transferred to the Department of Military
Affairs and Public Safety. All funds remaining attributable to
charges made against railroads under the provisions of section six,
article three of this chapter or any other provision of this chapter
shall be transferred to the Department of Military Affairs and
Public Safety
. The Secretary of the Department of Military Affairs
and Public Safety
shall submit proposed legislation to the 2011
regular session of the Legislature necessary to effectuate and
specifically codify these changes.
NOTE: The purpose of this bill is to provide that the
jurisdiction of the Public Service Commission to regulate railroads
terminates July 1, 2011, and transferring this authority to the
Department of Military Affairs and Public Safety
. Remaining funds
resulting from charges to railroads are to be transferred the
Department of Military Affairs and Public Safety
.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.