PENNSYLVANIA
PUBLIC UTILITY COMMISSION
Harrisburg, PA 17105-3265
Public Meeting held February 5, 2009
Commissioners Present:
James H. Cawley, Chairman
Tyrone J. Christy, Vice Chairman
Robert F. Powelson
Kim Pizzingrilli
Wayne E. Gardner
Petition of the Borough of Frackville for
Interlocutory Review and Answer to a P-2008-2016340
Material Question
Petition for Clarification of the Frackville
Area Municipal Authority
OPINION AND ORDER
BY THE COMMISSION:
Before the Commission for consideration and disposition is the Petition for Clarification (Petition) filed by the Frackville Area Municipal Authority (FAMA), seeking clarification of our Opinion and Order entered August 21, 2008 (August 21 Order). Also before the Commission is the Answer filed by the Borough of Frackville (Frackville).
History of the Proceeding
On January 18, 2008, FAMA filed a Petition for Issuance of a Declaratory Order seeking a declaration that Frackville would be required to obtain a certificate of public convenience prior to acquiring assets from FAMA. On February 11, 2008, Frackville filed Preliminary Objections in the Nature of a Demurrer to the Declaratory Order Petition.
By Interim Order dated July 2, 2008, Administrative Law Judge Ember S. Jandebeur ruled that there were factual issues in doubt which required the denial of Frackville’s Preliminary Objections. On July 10, 2008, Frackville filed a Petition for Interlocutory Review. On July 21, 2008, Frackville filed its Brief in Support of the Petition. Also on July 21, 2008, FAMA, the Township of West Mahanoy and the Township of Butler filed their joint Brief in Opposition to the Petition.
In our August 21 Order, we ruled on Frackville’s Petition for Interlocutory Review which posed the following question:
Does the Commission have any jurisdiction under the Public Utility Code to review a transaction where the Borough of Frackville is transferring assets to provide sewage services from one authority it created to another authority it has created, where neither authority has been or ever will be regulated by the Commission and the Borough itself does not now and will not in the future use the assets to provide sewage services?
August 21 Order at 1.
That question was answered in the negative. On September 5, 2008, FAMA filed its Petition for Clarification of the August 21 Order. On September 17, 2008, Frackville filed an Answer to FAMA’s Petition.
Discussion
Petitions for Clarification are provided for in the Commission’s Regulations at 52 Pa. Code § 5.572. In this instance, FAMA states that clarification is necessary regarding two aspects of Frackville’s transaction regarding wastewater facilities. FAMA requests that this Commission clarify our August 21 Order with regard to Frackville’s obligation to obtain a Certification of Public Convenience if Frackville intends to temporarily operate wastewater facilities outside of Frackville’s municipal boundaries. FAMA also seeks clarification as to whether Frackville’s ownership of former FAMA wastewater facilities in conjunction with leasing those facilities to another entity constitutes “rendering or furnishing” public utility service pursuant to Section 1102(a)(5) of the Public Utility Code, 66 Pa. C.S. § 1102(a)(5). FAMA Petition at 1.
In its Petition, FAMA seizes on one paragraph in our August 21 Order and urges that clarification is needed because FAMA believes that paragraph opens new doors and pathways through and around the simple issue presented by Frackville in Frackville’s original Petition for Interlocutory Review and our clear disposition of that issue. FAMA quotes the following from our August 21 Order:
In the event that Frackville, at any point in time, endeavors to acquire or use facilities “for the rendering or furnishing to the public of any public utility service beyond its corporate limits,” then such service will be within the jurisdiction of this Commission and a Certificate of Public Convenience will be required before any such service can begin. 66 Pa. C.S. §1101(a)(5).
August 21 Order at 10.
So as not to leave anything to chance, FAMA emphasizes the phrase, “at any point in time.” FAMA Petition at 4. The balance of the FAMA Petition argues that our August 21 Order must be clarified so that it can be read to require Frackville to obtain a Certificate of Public Convenience in the event that Frackville comes into possession of the wastewater facilities for “some period of time.” FAMA Petition, passim. One of the more telling statements by FAMA argues: “It is undisputed by the parties that FAMA’s wastewater treatment facilities would be in the possession of Frackville for some length of time, and it is reasonable to assume that during that length of time the wastewater treatment facilities would be in operation.” FAMA Petition at 5.
Frackville responds to FAMA’s arguments and asserts that FAMA is not seeking clarification but reconsideration and a reversal of our August 21 Order. Frackville states that FAMA has presented a “frivolous request because the Commission has already categorically rejected FAMA’s erroneous description of the transfer . . . .” Frackville Answer at 2. Frackville observes that we have previously concluded that Frackville has no intention of providing extraterritorial service and that Frackville had structured the transaction in such a fashion that it was clear that Frackville was not acquiring FAMA’s wastewater assets with the intention of providing such service. Id. Frackville states, “Contrary to FAMA’s assertions, the Commission fully understood that the Ordinance authorizes a transfer from one authority to another with Frackville as the legal vehicle and that Frackville will not provide service ‘at any point in time’ – not even for an instant.” Frackville Answer at 3, quoting the August 21 Order at 10 (footnote omitted).
We will deny FAMA’s Petition. In doing so, we quote from FAMA’s own Petition.
Frackville’s Material Question, and the Commission’s analysis, do not specifically acknowledge that Frackville will hold the assets for some period of time, but the Commission’s Opinion and Order makes it clear that if Frackville were to use those assets to provide wastewater treatment service beyond its corporate limits, a Certificate of Public Convenience must be obtained by Frackville.
FAMA Petition at 5.
We agree that our August 21 Order “makes it clear” that extraterritorial service would require a Certificate of Public Convenience. That is the “clarification” which FAMA ostensibly seeks here. However, as argued by Frackville, FAMA is actually seeking a substantial revision of the underlying factual basis for the conclusion reached in our August 21 Order. FAMA has offered nothing which would alter our initial determination that, under the facts presented, Frackville “has no intention of providing extraterritorial service.” August 21 Order at 9. We found in our August 21 Order that the Borough Ordinance which authorized the transaction expressly provided that the transaction must be structured in such a fashion that the Borough would not be deemed to provide extraterritorial service subject to the jurisdiction of this Commission. Id. at 6, 9.
FAMA erects a strawman, that Frackville must be assumed to be in possession of wastewater facilities and, therefore, must be assumed to provide extraterritorial service at some point in time. FAMA then states the obvious conclusion that at that point in time, whenever it occurs and regardless of its duration, Frackville would be required to obtain a Certificate of Public Convenience. FAMA Petition at 5-6. This is identical to the argument FAMA raised before and which we disposed of in our August 21 Order.
FAMA next moves to the argument that the Ordinance authorizing the transaction provides that Frackville may “transfer by sale or lease.” FAMA Petition at 7. This, according to FAMA, clearly contemplates Frackville’s ownership of the wastewater assets and such ownership of assets used for extraterritorial service would require a Certificate of Public Convenience. Id. We again point FAMA to the authorizing Ordinance which provides that however Frackville structures the transaction, it is required to do so in such a fashion that Frackville will not be deemed to be providing extraterritorial service subject to this Commission’s jurisdiction. See, August 21 Order at 6, 9-10. In the event that such a leasing transaction occurs (and FAMA has not alleged that such is the case), and that transaction would subject Frackville to our jurisdiction, then FAMA may file a formal Complaint before this Commission. It is also possible that FAMA may pursue civil remedies against Frackville for acting outside of the scope of the authorizing Ordinance.
Regardless of FAMA’s attempts to reframe the issue and raise hypothetical facts not supported by the record, our August 21 Order is quite clear. Under the facts presented, Frackville would not be deemed to provide extraterritorial service subject to our jurisdiction. As we also stated in the August 21 Order, in the event that Frackville does acquire assets for the purpose of providing extraterritorial service, then a Certificate of Public Convenience will be required. No clarification is required.
Conclusion
Based on the foregoing discussion, we find that the Petition for Clarification filed by FAMA is without merit and should be denied; THEREFORE,
IT IS ORDERED:
1. That the Petition for Clarification filed by the Frackville Area Municipal Authority is denied.
2. That this proceeding is marked closed.
BY THE COMMISSION,
James J. McNulty
Secretary
(SEAL)
ORDER ADOPTED: February 5, 2009
ORDER ENTERED: February 6, 2009
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