Current through Register Vol. 54, No. 38, September 21, 2024
(a)
Coverage. This section applies to all utility projects or
services, including alternative energy systems.
(b)
Purpose. This section
provides guidance to developers of all utility projects or services, including
developers of alternative energy systems under the Alternative Energy Portfolio
Standards Act (73 P. S. §
§ 1648.1-1648.8), in facilitating the
design of projects and business plans.
(c)
Fact based
determination. The Commission will consider the status of a utility
project or service based on the specific facts of the project or service and
will take into consideration the following criteria in formulating its
decision:
(1) The service being provided by
the utility project is merely incidental to nonutility business with the
customers which creates a nexus between the provider and customer.
(2) The facility is designed and constructed
only to serve a specific group of individuals or entities, and others cannot
feasibly be served without a significant revision to the project.
(3) The service is provided to a single
customer or to a defined, privileged and limited group when the provider
reserves its right to select its customers by contractual arrangement so that
no one among the public, outside of the selected group, is privileged to demand
service, and resale of the service is prohibited, except to the extent that a
building or facility owner/operator that manages the internal distribution
system serving the building or facility supplies electric power and related
electric power services to occupants of the building or facility. See
66 Pa.C.S. §
§
102 and
2803 (relating to
definitions).
(d)
Contractual language permitting modifications. The Commission
will not deem a utility project or service that satisfies the criteria under
subsection (c) to be a public utility based solely on the fact that the
relevant contractual provisions between the utility service provider or project
developer and end-user customers permit:
(1)
The utility service provider or project developer to substitute customers or to
rearrange the project.
(2) The
service provider or utility project developer to revise the customer group as a
result of a material change in circumstances, including an instance when the
actual output from the project proves to be materially less than or greater
than projected levels.
(e)
Modification of project or
service. Implementation of contractual provisions that result in an
actual increase in the original customer number, an actual alteration to the
nature of the relationship between the project developer and the original
customer group, an alteration to the select nature of the original customer
group or other material change in regard to the original customer group may
result in a change to the nonpublic utility status of the utility project or
service.
(f)
Chief Counsel
opinion letter. A project developer may request informal advice from
the Chief Counsel regarding the jurisdictional status of a utility project or
service. The opinion of counsel letter will be issued under §
1.96 (relating to unofficial
statements and opinions by Commission personnel).
(1) A request for opinion of counsel letter
must be directed to the Commission's Chief Counsel and contain the facts
necessary to render an opinion as to the jurisdictional status of the utility
project or service. The opinion will be based solely on the facts provided and
limited to the facts stated in the request.
(2) The Chief Counsel will file a copy of the
opinion of counsel letter with the Commission's Secretary. The copy of the
opinion of counsel letter will be filed at Docket No. M-00051865 F.0002 and
will constitute constructive notice of the utility project or service that is
the subject of the opinion. The Commission will publish public notice of the
issuance of the letter in the Pennsylvania Bulletin. Opinion
of counsel letters filed at the previous docket number will be available for
public access upon request.
(3) The
act of requesting an opinion of counsel letter may be considered as evidence of
a good faith effort to operate in accordance with the law by the project
developer of a utility project or service and may be considered as a mitigating
factor in imposition of fines and penalties in future complaint proceedings
alleging de facto public utility operations.
(4) A change in the nature or scope of the
operation of the utility project or service may result in a change in the
informal advice rendered by an opinion of counsel letter. When a change occurs
in the facts stated in the request, a project developer may not rely on the
existing Chief Counsel opinion letter but the project developer may request a
supplemental Chief Counsel opinion letter.
(g)
Notice and disclosure
statement. A utility service provider or project developer may
voluntarily file with the Commission's Secretary a notice and disclosure
statement describing the nature and scope of the operation of a utility project
or service with an assertion of its nonpublic utility status.
(1) Information that will allow for a
determination to be made as to the jurisdictional status of the utility project
or service, including its location, capacity output and the projected number of
customers served, should be provided in the notice and disclosure statement.
The reasons that the utility project or service does not constitute a public
utility facility or provide public utility service should be explained with
reference to the criteria presented in this section.
(2) The notice and disclosure statement will
be filed at Docket No. M-00051865 F.0002 and will be available for public
access upon request. The Commission will publish public notice of the filing in
the Pennsylvania Bulletin. The filed notice and disclosure
statement will constitute constructive notice of the asserted nonpublic utility
status of the utility project or service.
(3) The act of voluntarily filing a notice
and disclosure of nonpublic utility status may be considered as evidence of a
good faith effort to operate in accordance with the law by the project
developer of a utility service or utility service provider and may be
considered as a mitigating factor in imposition of fines and penalties in
future complaint proceedings alleging de facto public utility
operations.
(4) A notice and
disclosure statement of nonpublic utility status may be amended to report a
change in the nature or operation of the utility project or service that may
affect its jurisdictional status. An amended notice and disclosure statement
should be filed with the Commission's secretary as soon as practicable after a
change takes place.
