W. Va. Code R. § 150-2-23

Current through Register Vol. XLII, No. 1, January 3, 2025

Section 150-2-23 - Ratemaking and Appeals Procedures for Non-LRR Muni Water and Sewer Utilities, Municipal Gas Utilities, Telephone, Electric and Natural Gas Cooperatives

23.1. Procedures to be followed by Non-LRR Muni water and sewer utilities, municipal natural gas utilities and electric, telephone and natural gas cooperatives:

23.1.1. All rates and charges set by electric cooperatives, natural gas cooperatives, telephone cooperatives and-Non-LRR Munis shall be just, reasonable, applied without unjust discrimination or preference and based primarily on the costs of providing these services. Cooperatives shall comply with all statutory notice requirements for passing cooperative board resolutions to change rates.

23.1.2. All such utility rates and charges are to be on file with the Commission at all times.

23.1.3. The Non-LRR Muni shall comply with pre-adoption newspaper publication requirements of Chapter 8 and, if applicable. Chapter 16 of the West Virginia Code, and, if requesting to waive the 45 day waiting period, the bill notice requirement of W. Va. Code § 24-2-4b. The bill notice must be received by customers at least five (5) days prior to the public meeting at which a rate ordinance will be adopted.

23.1.4. Within five (5) days after the adoption of rates, the utility must provide its customers with notice of the rate change in order to allow the filing of timely objections to such rate changes with die Commission. Notice shall be provided by causing to be published in a qualified newspaper of general circulation in each of the counties where the utility provides service and where its resale customers provide service, a Class II Legal Advertisement that conforms with Tariff Form No. 12 or 13. The first publication must occur within five (5) days, or, if the notice is to be published in a newspaper that issues on a weekly basis, by the first possible publication date, after adoption of die rate change.

23.1.4.a. In addition to providing notice by publication, die utility must also post notice of the proposed rate change in a conspicuous place at die utility's business premises beginning the day after die meeting where the rate change is adopted and continuing through die thirty (30) day appeal period provided by W. Va. Code § 24-2-4b. The posted notice must conform with Tariff Form No. 12 or 13.

23.1.5. All changes in electric cooperative, natural gas cooperative, telephone cooperative or municipal utility rates and charges are to be accomplished by die adoption of a legally valid governing board resolution or municipal ordinance, in accordance with the provisions of West Virginia law or by a provision of a municipal or cooperative charter, whichever is appropriate in the particular case.

23.1.6. The utility is to set the date when such a resolution or municipal ordinance shall take effect; however, in no event shall the resolution or ordinance be effective sooner than forty-five (45) days after adoption unless one of the following exceptions applies;

23.1.6.a. The rate change is stated in a municipal ordinance that would result in an increase in utility gross revenues of less than twenty-five percent; or

23.1.6.b. The rate change is stated in a municipal ordinance that will result in an increase in utility gross revenue of twenty-five percent or more and die Commission has granted a waiver under the provisions of W. Va. Code § 24-2-4b(d)(2) to allow a municipal ordinance to go into effect on the date of enactment;

23.1.6.c. The rate change is stated in a municipal ordinance and the 45-day waiting period has been waived pursuant to W. Va. Code § 24-2-4b(b); or

23.1.6.d. The Commission has granted an interim or emergency rate in a resolution or an ordinance to take effect and waived the forty-five day waiting period as provided in W. Va. Code § 24-2-4b(h).

23.1.7. Within five (5) days after the adoption of a resolution or ordinance changing a utility rate or charge, an electric, natural gas, telephone cooperative or a Non-LRR Muni shall file with the Executive Secretary of the Public Service Commission:

23.1.7.a. The new rates or charges;

23.1.7.b. The applicable resolution or ordinance;

23.1.7.c. The justification for such resolution or ordinance, including, but not limited to a peroforma income statement showing the cost of providing service and revenues to be generated by die new rates or charges;

23.1.7.d. An affidavit of publication of the utility's legal publication made pursuant to W. Va. Code §§ 8-11-4, 8-20-10, 16-13-16 or any other applicable W. Va. Code provision published prior to adoption of die proposed rates;

23.1.7.e. Verification that the utility mailed a pre-adoption bill notice to all customers in time to have been received by customers at least five (5) days prior to the public meeting at which a rate ordinance or resolution was adopted.

23.1.7.f. An affidavit of publication or photocopy of die legal advertisement giving notice to customers of the adoption of the ordinance or resolution in accordance with Tariff Rule 23.1.4.; and,

23.1.7.g. The correct number of customers served by the utility, as determined by the number of bills rendered in the billing cycle last completed before die adoption of the resolution or ordinance. A Tariff Rule 20.1. (Historical Rule_42) exhibit is not required to be filed by die utility in cases subject to this Rule.

23.1.8. Within five (5) days after die adoption of a municipal ordinance to increase utility gross revenues by twenty-five percent or more, a Non-LRR Muni may file with the Executive Secretary of the Public Service Commission a request for a waiver under W. Va. Code § 24-2-4b(d)(2).

23.1.8.a. The Commission will not grant a waiver under W. Va. Code § 24-2-4b(d)(2) unless the Non-LRR Muni utility files the waiver request on die date it files its ordinance at die Commission and includes with its petition a certified statement of good cause shown by a statement of insufficient cash flow to meet normal, ongoing cash requirements, including debt service and die need to produce a cash surplus that will provide the greater of required coverage, required renewal and replacement funds or a reasonable level of ongoing capital expenditures.

23.1.8.b. Commission Staff will file its recommendation in response to the Non-LRR Muni utility waiver request within fourteen days after the waiver request is filed and the utility shall have five days within which to respond to die Staff recommendation.

23.1.8.c. The Commission will deny a Non-LRR Muni utility waiver request filed under this rule that is missing a complete and certified statement described in Tariff Rule 23.1.8.a. In considering die waiver request, die Commission will consider the certified statement, the information required by Tariff Rule 23.1.7. and die Staff recommendation and the utility response to the Staff recommendation.

23.1.9. Non-LRR Muni shall promptly provide information about the correct number of customers, members or stockholders to any such customer, member or stockholder requesting this information.

23.2. Procedures to be followed by Non-LRR Muni, Electric, Telephone and Natural Gas Cooperatives.

23.2.1. Within five (5) days after the adoption of a cooperative board resolution or ordinance changing a utility rate or charge, an Non-LRR Muni, Electric, Telephone and Natural Gas Cooperatives shall file with the Executive Secretary of die Public Service Commission;

23.2.1.a. The new rates or charges;

23.2.1.b. The applicable cooperative board resolution or ordinance;

23.2.1.c. If the Non-LRR-Muni provides service to a wholesale customer(s), it shall provide the justification for such cooperative board resolution or ordinance, including an allocation of cost to provide service to the wholesale customer(s) and revenues to be generated by the new rates or charges;

23.2.1.d. Verification in die form of Tariff Form No. 6-A that the utility mailed a completed Tariff Form No. 14 to each of its wholesale customer(s) advising of the rate adopted by the cooperative board resolution and of the customer's right to file a complaint with die Public Service Commission pursuant to W. Va. Code § 24-2-1(a)(6); and

23.2.1.e. An affidavit of publication or photocopy of the utility's legal publication made pursuant to W. Va. Code §§ 8-11-4, 8-20-10, 16-13-16 or any other applicable W. Va. Code provision published prior to adoption of the proposed rates.

23.3. Procedure to be followed by die customers, members or stockholders of Non-LRR Muni, municipal natural gas utilities, electric, natural gas or telephone cooperatives who wish to protest changes in utility rates and charges;

23.3.1. Pursuant to § 24-2-4b of the W. Va. Code the following customer(s), member(s) or stockholder(s) may protest to the Commission, changes in die utility's rates and charges;

23.3.1.a. Any customer, member or stockholder aggrieved by the changed rates or charges who presents to die Commission a petition signed by not less than twenty-five percent (25%) of the customers, members or stockholders residing within die State, served by such public utility; or

23.3.1.b. Any customer who is served by a municipally owned natural gas public utility and who resides outside the corporate limits and who is affected by the change in said rates or charges and who presents to die Commission a petition alleging discrimination between customers within and without the municipal boundaries. Such petition shall be accompanied by evidence of discrimination; or

23.3.1.c. Any customer or group of customers of a municipally owned natural gas public utility who is affected by said change in rates who resides within the municipal boundaries and who presents a petition to the Commission alleging discrimination between said customer or group of customers and other customers of the municipal utility. Said petition shall be accompanied by evidence of discrimination.

23.3.2. Whenever used in Chapter 24 of the W. Va. Code or this Rule, the term "Customer" shall mean and include any person, firm, corporation, municipality, public service district or any other entity who purchases a product or services of any utility and shall include any such person, firm, corporation, municipality, public service district or any other entity who purchases such services or products for resale.

23.3.2.a. This definition refers to customers of record with the utility and cannot be broadened to include all residents of a municipality or those who may be ultimate consumers of die product.

23.3.2.b. The spouse of a customer of record may sign a petition for the customer of record, but if both parties sign they are to be treated as one customer.

23.3.3. Any protest by a customer(s), member(s) or stockholder(s) must be filed with the Commission within thirty (30) days of the adoption of die cooperative board resolution or municipal ordinance changing said rates and/or charges.

23.4. Procedure to be followed upon review by die Commission when a petition of protest is filed for rates of a filed for rates of a Non-LRR Muni, municipal natural gas utility or electric, natural gas or telephone cooperative;

23.4.1. Upon the filing with the Commission of a petition which protests a changed rate or charge by a Non-LRR Muni, municipal natural gas utility or electric, natural gas or telephone cooperative and which meets the requirements of Tariff Rule 23.3.1.a., 23.3.1.b. or 23.3.1.c above, the Commission will exercise its jurisdiction over the cooperative board resolution or ordinance changing such rate or charge and shall suspend die effective date of the resolution or ordinance changing such rate or charge for a period of one hundred twenty (120) days from the date said rates or charges would otherwise go into effect, or until an order is issued. Provided, however, that upon the exercise of Commission jurisdiction over a Non-LRR Muni ordinance (i) that would result in an increase in utility gross revenues of less than twenty-five percent, (ii) for which the Commission has granted a waiver requested under W. Va. Code § 24-2-4b(d)(2). (iii) for which die governing body of the utility has waived the 45-day waiting period; or (iv) for which die Commission has granted a waiver requested under W. Va. Code § 24-2-4b(h), then die Commission shall not suspend the effective date of die ordinance, and the Non-LRR Muni may put the ordinance or resolution rates into effect on enactment or on die date stated in die ordinance, as applicable, subject to refund based on further Commission investigation and review. If the Commission approves lower rates, the Non-LRR Muni will be required to make customer refunds.

23.4.2. Upon the filing of a Tariff Rule 23.3. La, 23.3. Lb., or 23.3.1.c. petition that protests a municipal ordinance that would result in an increase in utility gross revenues of twenty-five percent or more, then the municipal utility may apply for, and die Commission may grant, a waiver of die statutory suspension period, and allow rates to go into effect on the date stated in the ordinance as provided in W. Va. Code § 24-2-4b(h).

23.4.3. The Commission shall notify the affected cooperative or municipality by certified mail, return receipt requested, that it has assumed jurisdiction over the case and whether die rates are suspended, and it shall furnish a copy of the applicable petition of protest to die utility.

23.4.4. If any Non-LRR Muni, municipal natural gas utility or electric, natural gas or telephone cooperative objects to die filing of die petition of protest, it must do so by challenging the validity of the petition. Such challenge should be filed within fifteen (15) days after receipt by die utility of notice that the Commission has assumed jurisdiction. The utility should be prepared to go forward with its evidence on the issue of jurisdiction within thirty (30) days of die filing of die appeal.

23.4.4.a. These time limits are expected to be sufficient to allow proper preparation of each case. If, for whatever reason, a cooperative or municipality wishes to file a challenge at a later date, die Administrative Law Judge shall have the discretion to approve such request upon the showing of good cause.

23.5. Procedure for the disposition of cases over which Commission jurisdiction is exercised.

23.5.1. The burden of proving the reasonableness of rate changes shall be on die utility and the utility is free to file with die Commission any information it desires to support a change in die rates. The Administrative Law Judge in each case shall direct when all such information is to be filed.

23.5.2. The Commission staff shall in all cases conduct an investigation of die Non-LRR Muni, municipal natural gas utility or electric, natural gas or telephone cooperative and submit an audit report and cash-flow analysis.

23.5.3. In order to facilitate the timely disposition of such cases, the following timetable is suggested to be followed by the utilities involved and die Commission staff; however, the Administrative Law Judge in such cases shall be free to establish any reasonable timetable;

Day 1 - Petition of protest filed.

Day 15 - Any challenge by the utility to the validity of die petition of protest should be received by the Commission.

Day 30 - The utility should be prepared to go forward on the issue of the challenge to the appeal.

Day 63 - The staff must file its required reports.

Day 70 - Public hearing is to be held.

23.6. It is expected that die Non-LRR Muni, municipal natural gas utility or electric, natural gas or telephone cooperative will cooperate with the Commission as much as possible in cases where customers, members or stockholders protest a utility rate change. In circumstances in which a cooperative or a municipality does not file with the Commission any of the required information, the Commission may toll the running of the one hundred twenty (120) day suspension period, if applicable, and the one hundred (100) day period limitation for issuance of an order by an Administrative Law Judge until such time as the utility fries the required information with die Executive Secretary of the Public Service Commission die information required by Rule 23.1.7.a-f and such other information as the Commission deems necessary.

23.7. Commission Staff has developed time guidelines to assist municipal operated water or sewer utilities in adopting rate changes in compliance with the W. Va. Code. These guidelines may be obtained by calling die Commission at 1-800-344-5113 or by accessing the Commission's website at www.psc.state.wv.us

W. Va. Code R. § 150-2-23