529 - Power of commission to order acquisition of small water and sewer utilities.

     § 529.  Power of commission to order acquisition of small water                and sewer utilities.        (a)  General rule.--The commission may order a capable public     utility to acquire a small water or sewer utility if the     commission, after notice and an opportunity to be heard,     determines:            (1)  that the small water or sewer utility is in        violation of statutory or regulatory standards, including,        but not limited to, the act of June 22, 1937 (P.L.1987,        No.394), known as The Clean Streams Law, the act of January        24, 1966 (1965 P.L.1535, No.537), known as the Pennsylvania        Sewage Facilities Act, and the act of May 1, 1984 (P.L.206,        No.43), known as the Pennsylvania Safe Drinking Water Act,        and the regulations adopted thereunder, which affect the        safety, adequacy, efficiency or reasonableness of the service        provided by the small water or sewer utility;            (2)  that the small water or sewer utility has failed to        comply, within a reasonable period of time, with any order of        the Department of Environmental Resources or the commission        concerning the safety, adequacy, efficiency or reasonableness        of service, including, but not limited to, the availability        of water, the potability of water, the palatability of water        or the provision of water at adequate volume and pressure;            (3)  that the small water or sewer utility cannot        reasonably be expected to furnish and maintain adequate,        efficient, safe and reasonable service and facilities in the        future;            (4)  that alternatives to acquisition have been        considered in accordance with subsection (b) and have been        determined by the commission to be impractical or not        economically feasible;            (5)  that the acquiring capable public utility is        financially, managerially and technically capable of        acquiring and operating the small water or sewer utility in        compliance with applicable statutory and regulatory        standards; and            (6)  that the rates charged by the acquiring capable        public utility to its preacquisition customers will not        increase unreasonably because of the acquisition.        (b)  Alternatives to acquisition.--Before the commission may     order the acquisition of a small water or sewer utility in     accordance with subsection (a), the commission shall discuss     with the small water or sewer utility, and shall give such     utility a reasonable opportunity to investigate, alternatives to     acquisition, including, but not limited to:            (1)  The reorganization of the small water or sewer        utility under new management.            (2)  The entering of a contract with another public        utility or a management or service company to operate the        small water or sewer utility.            (3)  The appointment of a receiver to assure the        provision of adequate, efficient, safe and reasonable service        and facilities to the public.            (4)  The merger of the small water or sewer utility with        one or more other public utilities.            (5)  The acquisition of the small water or sewer utility        by a municipality, a municipal authority or a cooperative.        (c)  Factors to be considered.--In making a determination     pursuant to subsection (a), the commission shall consider:            (1)  The financial, managerial and technical ability of        the small water or sewer utility.            (2)  The financial, managerial and technical ability of        all proximate public utilities providing the same type of        service.            (3)  The expenditures which may be necessary to make        improvements to the small water or sewer utility to assure        compliance with applicable statutory and regulatory standards        concerning the adequacy, efficiency, safety or reasonableness        of utility service.            (4)  The expansion of the franchise area of the acquiring        capable public utility so as to include the service area of        the small water or sewer utility to be acquired.            (5)  The opinion and advice, if any, of the Department of        Environmental Resources as to what steps may be necessary to        assure compliance with applicable statutory or regulatory        standards concerning the adequacy, efficiency, safety or        reasonableness of utility service.            (6)  Any other matters which may be relevant.        (d)  Order of the commission.--Subsequent to the     determinations required by subsection (a), the commission shall     issue an order for the acquisition of the small water or sewer     utility by a capable public utility. Such order shall provide     for the extension of the service area of the acquiring capable     public utility.        (e)  Acquisition price.--The price for the acquisition of the     small water or sewer utility shall be determined by agreement     between the small water or sewer utility and the acquiring     capable public utility, subject to a determination by the     commission that the price is reasonable. If the small water or     sewer utility and the acquiring capable public utility are     unable to agree on the acquisition price or the commission     disapproves the acquisition price on which the utilities have     agreed, the commission shall issue an order directing the     acquiring capable public utility to acquire the small water or     sewer utility by following the procedure prescribed for     exercising the power of eminent domain pursuant to the act of     June 22, 1964 (Sp.Sess., P.L.84, No.6), known as the Eminent     Domain Code.        (f)  Separate tariffs.--The commission may, in its discretion     and for a reasonable period of time after the date of     acquisition, allow the acquiring capable public utility to     charge and collect rates from the customers of the acquired     small water or sewer utility pursuant to a separate tariff.        (g)  Appointment of receiver.--The commission may, in its     discretion, appoint a receiver to protect the interests of the     customers of the small water or sewer utility. Any such     appointment shall be by order of the commission, which order     shall specify the duties and responsibilities of the receiver.        (h)  Notice.--The notice required by subsection (a) or any     other provision of this section shall be served upon the small     water or sewer utility affected, the Office of Consumer     Advocate, the Office of Small Business Advocate, the Office of     Trial Staff, the Department of Environmental Resources, all     proximate public utilities providing the same type of service as     the small water or sewer utility, all proximate municipalities     and municipal authorities providing the same type of service as     the small water or sewer utility and the municipalities served     by the small water or sewer utility. The commission shall order     the affected small water or sewer utility to provide notice to     its customers of the initiation of proceedings under this     section in the same manner in which the utility is required to     notify its customers of proposed general rate increases.        (i)  Burden of proof.--The Law Bureau shall have the burden     of establishing a prima facie case that the acquisition of the     small water or sewer utility would be in the public interest and     in compliance with the provisions of this section. Once the     commission determines that a prima facie case has been     established:            (1)  the small water or sewer utility shall have the        burden of proving its ability to render adequate, efficient,        safe and reasonable service at just and reasonable rates; and            (2)  a proximate public utility providing the same type        of service as the small water or sewer utility shall have the        opportunity and burden of proving its financial, managerial        or technical inability to acquire and operate the small water        or sewer utility.        (j)  Plan for improvements.--Any capable public utility     ordered by the commission to acquire a small water or sewer     utility shall, prior to acquisition, submit to the commission     for approval a plan, including a timetable, for bringing the     small water or sewer utility into compliance with applicable     statutory and regulatory standards. The capable public utility     shall also provide a copy of the plan to the Department of     Environmental Resources and such other State or local agency as     the commission may direct. The commission shall give the     Department of Environmental Resources adequate opportunity to     comment on the plan and shall consider any comments submitted by     the department in deciding whether or not to approve the plan.     The reasonably and prudently incurred costs of each improvement     shall be recoverable in rates only after that improvement     becomes used and useful in the public service.        (k)  Limitations on liability.--Upon approval by the     commission of a plan for improvements submitted pursuant to     subsection (j) and the acquisition of a small water or sewer     utility by a capable public utility, the acquiring capable     public utility shall not be liable for any damages beyond the     aggregate amount of $50,000, including a maximum amount of     $5,000 per incident, if the cause of those damages is     proximately related to identified violations of applicable     statutes or regulations by the small water or sewer utility.     This subsection shall not apply:            (1)  beyond the end of the timetable in the plan for        improvements;            (2)  whenever the acquiring capable public utility is not        in compliance with the plan for improvements; or            (3)  if, within 60 days of having received notice of the        proposed plan for improvements, the Department of        Environmental Resources submitted written objections to the        commission and those objections have not subsequently been        withdrawn.        (l)  Limitations on enforcement actions.--Upon approval by     the commission of a plan for improvements submitted pursuant to     subsection (j) and the acquisition of a small water or sewer     utility by a capable public utility, the acquiring capable     public utility shall not be subject to any enforcement actions     by State or local agencies which had notice of the plan if the     basis of such enforcement action is proximately related to     identified violations of applicable statutes or regulations by     the small water or sewer utility. This subsection shall not     apply:            (1)  beyond the end of the timetable in the plan for        improvements;            (2)  whenever the acquiring capable public utility is not        in compliance with the plan for improvements;            (3)  if, within 60 days of having received notice of the        proposed plan for improvements, the Department of        Environmental Resources submitted written objections to the        commission and those objections have not subsequently been        withdrawn; or            (4)  to emergency interim actions of the commission or        the Department of Environmental Resources, including, but not        limited to, the ordering of boil-water advisories or other        water supply warnings, of emergency treatment or of        temporary, alternate supplies of water.        (m)  Definitions.--As used in this section, the following     words and phrases shall have the meanings given to them in this     subsection:        "Capable public utility."  A public utility which regularly     provides the same type of service as the small water utility or     the small sewer utility to 4,000 or more customer connections,     which is not an affiliated interest of the small water utility     or the small sewer utility and which provides adequate,     efficient, safe and reasonable service. A public utility which     would otherwise be a capable public utility except for the fact     that it has fewer than 4,000 customer connections may elect to     be a capable public utility for the purposes of this section     regardless of the number of its customer connections and     regardless of whether or not it is proximate to the small sewer     utility or small water utility to be acquired.        "Small sewer utility."  A public utility which regularly     provides sewer service to 1,200 or fewer customer connections.        "Small water utility."  A public utility which regularly     provides water service to 1,200 or fewer customer connections.     (Apr. 16, 1992, P.L.149, No.27, eff. 60 days)        1992 Amendment.  Act 27 added section 529.        References in Text.  The Department of Environmental     Resources, referred to in this section, was abolished by Act 18     of 1995. Its functions were transferred to the Department of     Conservation and Natural Resources and the Department of     Environmental Protection.