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The Pennsylvania Code website reflects the Pennsylvania Code changes effective through 52 Pa.B. 4384 (July 30, 2022).

52 Pa. Code § 69.711. Acquisition incentives.

SMALL NONVIABLE WATER AND WASTEWATER SYSTEMS—STATEMENT OF POLICY


§ 69.711. Acquisition incentives.

 (a)  General. To accomplish the goal of increasing the number of mergers and acquisitions to foster regionalization, the Commission will consider the acquisition incentives in subsection (b). The following parameters shall first be met in order for Commission consideration of a utility’s proposed acquisition incentive. It should be demonstrated that:

   (1)  The acquisition serves the general public interest.

   (2)  The acquiring utility meets the criteria of viability that will not be impaired by the acquisition; that it maintains the managerial, technical and financial capabilities to safely and adequately operate the acquired system, in compliance with 66 Pa.C.S. (relating to the Public Utility Code), the Pennsylvania Safe Drinking Water Act (35 P. S. § §  721.1—721.17) and other requisite regulatory requirements on a short and long-term basis.

   (3)  The acquired system has less than 3,300 customer connections; the acquired system is not viable; it is in violation of statutory or regulatory standards concerning the safety, adequacy, efficiency or reasonableness of service and facilities; and that it has failed to comply, within a reasonable period of time, with any order of the Department of Environmental Protection or the Commission.

   (4)  The acquired system’s ratepayers should be provided with improved service in the future, with the necessary plant improvements being completed within a reasonable period of time.

   (5)  The purchase price of the acquisition is fair and reasonable and the acquisition has been conducted through arm’s length negotiations.

   (6)  The concept of single tariff pricing should be applied to the rates of the acquired system, to the extent that it is reasonable. Under certain circumstances of extreme differences in rates, or of affordability concerns, consideration should be given to a phase-in of the rate difference over a reasonable period of time.

 (b)  Acquisition incentives. In its efforts to foster acquisition of suitable water and wastewater systems by viable utilities when the acquisitions are in the public interest, the Commission seeks to assist these acquisitions by permitting the use of a number of regulatory incentives. Accordingly, the Commission will consider the following acquisitions incentives:

   (1)  Rate of return premiums. Under 66 Pa.C.S. §  523 (relating to performance factor considerations), additional rate of return basis points may be awarded for certain acquisitions and for certain associated improvement costs, based on sufficient supporting data submitted by the acquiring utility within its rate case filing. The rate of return premium as an acquisition incentive may be the most straightforward and its use is encouraged.

   (2)  Acquisition adjustment. When the acquiring utility’s acquisition cost differs from the depreciated original cost of the water or wastewater facilities first devoted to public use, the difference may be treated as follows for ratemaking purposes:

     (i)   Credit acquisition adjustment. Under 66 Pa.C.S. §  1327(e) (relating to acquisition of water and sewer facilities), when a utility pays less than the depreciated original cost of the acquired system, the acquiring utility may book and include in rate base the depreciated original cost of the acquired system, provided that the difference between the acquisition cost and depreciated original cost should be amortized as an addition to income over a reasonable period of time or be passed through to ratepayers by another methodology that is determined by the Commission. The acquiring utility may argue that no amortization or pass through is appropriate when the acquisition involves a matter of substantial public interest.

     (ii)   Debit acquisition adjustment. Under 66 Pa.C.S. §  1327(a), when a utility pays more than the depreciated original cost of the acquired system, the acquiring utility may book and include in rate base the excess of acquisition cost over depreciated original cost of the acquired system, provided that the utility can meet the requirements of 66 Pa.C.S. §  1327(a). When the acquisition does not qualify under 66 Pa.C.S. §  1327(a), the debit acquisition adjustment should be treated in accordance with generally accepted accounting principles and not be amortized for ratemaking purposes.

   (3)  Deferral of acquisition improvement costs. In cases when the plant improvements are of too great a magnitude to be absorbed by ratepayers at one time, rate recovery of the improvement costs may be recovered in phases. There may be a one time treatment—in the initial rate case-of the improvement costs but a phasing—in of the acquisition, improvements and associated carrying-costs may be allowed over a finite period.

   (4)  Plant improvement surcharge. Collection of a different rate from customers of the acquired system upon completion of the acquisition could be implemented to temporarily offset extraordinary improvement costs. In cases when the improvement benefits only those customers who are newly acquired, the added costs may be allocated on a greater than average level—but less than 100%—to the new customers for a reasonable period of time, as determined by the Commission.

 (c)  Procedural implementation.

   (1)  An acquiring utility that has met the criteria set forth in 66 Pa.C.S. §  1327(a)(1)—(9) for inclusion of a debit acquisition adjustment in its rate base, may elect to have this acquisition adjustment considered on a case-by-case basis as set forth in 66 Pa.C.S. §  1327(b), or as part of its next rate case filing. The acquiring utility should file the supporting documentation outlined in subsection (d) to support the requested acquisition adjustment.

   (2)  The appropriate implementation procedure to qualify for the other acquisition incentives in subsection (b) would be to file the appropriate supporting documentation during the next filed rate case.

   (3)  In acquisition incentive filings, the burden of proof rests with the acquiring utility.

 (d)  Documentation to support inclusion of acquisition adjustment. When an acquiring utility elects to have the acquisition adjustment to its rate base considered as a part of its next rate case filing, the acquiring utility should file the following documentation to support the acquisition adjustment to its rate base:

   (1)  Statement of reliance on existing records. An acquiring utility may elect to rely in whole or in part upon the original cost records of the seller or Commission in determining the original cost of the used and useful assets of the acquired system.

   (2)  Preparation of data to support acquisition adjustment. An acquiring utility, upon its own election, may file an original cost plant-in-service study with the Commission to support its requested acquisition adjustment to its rate base. An original cost study is one method of determining the valuation costs of the property of a public utility. It requires the acquiring utility to develop realistic plant balances and accumulates the records and accounting details that support those balances. Disputes regarding the acquiring utility’s original cost valuation of the assets of the acquired system will be resolved in the context of a rate proceeding when interested parties will have an opportunity to be heard.

     (i)   Contents of an original cost plant-in-service study. When an acquiring utility elects to submit its own original cost of plant-in-service valuation, the acquiring utility is obligated to exercise due diligence and make reasonable attempts to obtain, from the seller, documents related to original cost. In particular, as part of its exercise of due diligence, the acquiring utility should request from the seller, for purposes of determining the original cost plant-in-service valuation, the original cost of the assets being acquired and records relating to contributions in aid of construction (CIAC), such as the following:

       (A)   Accounting records and other relevant documentation and agreements of donations or contributions, services, or property from states, municipalities or other government agencies, individuals, and others for construction purposes.

       (B)   Records of unrefunded balances in customer advances for construction (CAC).

       (C)   Records of customer tap-in fees and hook-up fees.

       (D)   Prior original cost studies.

       (E)   Records of local, State and Federal grants used for construction of utility plant.

       (F)   Relevant PennVEST or Department of Environmental Protection records.

       (G)   Any Commission records.

       (H)   Summary of the depreciation schedules from all filed Federal tax returns.

         (I)   Other accounting records supporting plant-in-service.

     (ii)   Failure of seller to provide cost-related documents. The failure of a seller to provide cost-related documents, after reasonable attempts to obtain the data, will not be a basis for the Commission’s denial of the inclusion of the value of the acquired system’s assets in its proposed rate base. Because the documents obtained from the seller may be incomplete and may result in an inaccurate valuation, the acquiring utility will not be bound by the incomplete documents from the seller in the preparation of its original cost plant-in-service valuation.

     (iii)   Procedure for booking CIAC. The acquiring utility, at a minimum, should book as CIAC contributions that were properly recorded on the books of the system being acquired. If evidence supports other CIAC that was not booked by the seller, the acquiring utility should make a documented effort to determine the actual CIAC and record the contributions for ratemaking purposes, such as lot sale agreements or capitalization vs. expense of plant-in-service on tax returns.

     (iv)   Plant retired/not booked/not used and useful. The acquiring utility should identify all plant retirements and plant no longer used and useful, and complete the appropriate accounting entries.

     (v)   Reconciliation with commission records. In the case of an acquisition of a water or wastewater system that is regulated by the Commission, the acquiring utility should reconcile and explain any discrepancies between the acquiring utility’s original cost plant-in-service valuation and the Commission’s records, to the extent reasonably known and available to the acquiring utility, at the same time the supporting documentation for the study is filed.

 (e)  Time to submit original cost valuation. When the acquiring utility elects to request an acquisition adjustment during its next rate filing, it should submit a copy of its newly prepared original cost plant-in-service valuation of the acquired system or a statement of reliance of the existing records of the Commission or the seller to the Commission’s Secretary’s Bureau, the Bureau of Audits, the Bureau of Fixed Utility Services, the Office of Trial Staff, the Office of Consumer Advocate, and the Office of Small Business Advocate at least 4 months prior to the date that the acquiring utility plans to make its next rate case filing with the Commission.

   (1)  The Commission staff may conduct an audit of the original cost valuation, but if no staff audit is completed and released at public meeting before the date of the rate case filing, the Commission’s determination of the original cost valuation in the rate case will be deemed final action on the original cost valuation and any associated acquisition adjustment, absent subsequently discovered fraud or misrepresentation. When staff completes an audit before the rate case is filed, the results of the audit will not be binding on any party, but rather the audit report will be made available to the public and the report can be presented in the acquiring utility’s next rate case, subject to applicable evidentiary rules.

   (2)  When the acquiring utility makes a rate case filing sooner than the 4-month window, the acquiring utility should not include any revenues or expenses related to the acquisition, including the requested acquisition adjustment in its proposed rate base unless it includes the original cost valuation with the rate filing and one of the following circumstances applies:

     (i)   A compelling reason exists for requesting the acquisition adjustment in the current rate filing.

     (ii)   The acquisition was requested or otherwise directed by the Commission.

     (iii)   No statutory party objects to the inclusion of the acquisition adjustment to the proposed rate base of the acquiring utility.

 (f)  Purchase price of the water and wastewater system. The factors relevant to the reasonableness of the purchase price of the acquired water and wastewater system include:

   (1)  Promotion of long-term viability.

   (2)  Promotion of regionalization.

   (3)  Usage per customer.

   (4)  Growth rates.

   (5)  Cost of improvements.

   (6)  Age of the infrastructure.

   (7)  Return on equity.

   (8)  Existing rates.

   (9)  Purchase price per customer.

Source

   The provisions of this §  69.711 adopted March 29, 1996, effective March 30, 1996, 26 Pa.B. 1380; amended February 13, 1998, effective February 14, 1998, 28 Pa.B. 801; amended September 29, 2006, effective September 30, 2006, 36 Pa.B. 5991; corrected October 6, 2006, effective September 29, 2006, 36 Pa.B. 6107. Immediately preceding text appears at serial pages (255466) to (255468).

Cross References

   This section cited in 52 Pa. Code §  69.721 (relating to water and wastewater acquisitions).



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