Fleeher Sewage Treatment Plant; Tentative Order [42 Pa.B. 643]
[Saturday, January 28, 2012]Public Meeting held
January 12, 2012Commissioners Present: Robert F. Powelson, Chairperson; John F. Coleman Jr., Vice Chairperson; Wayne E. Gardner; James H. Cawley; Pamela A. Witmer
Fleeher Sewage Treatment Plant;
A-2012-2281410; A-98057-73Tentative Order By the Commission:
Fleeher Sewage Treatment Plant (Fleeher) was a wastewater treatment provider located in Cecil Township, Washington County, Pennsylvania with a mailing address of 21 Timber Crest Circle, Cecil, PA 15321, certificated at A-98057-73. Fleeher and Cecil Township Municipal Authority (CTMA) entered into a Settlement Agreement and General Release on May 26, 2011, wherein Fleeher agreed to abandon its sewage treatment plant and convey its sewage system to CTMA with certain materials, rights and easements necessary for conveyance of flows to CTMA's Millers Run Sewage Treatment Plant (Millers Run).
Background
George and Marian Fleeher, as husband and wife, owned and operated Fleeher. On May 15, 2009, George Fleeher passed away. Marian Fleeher individually was then the sole owner and operator of Fleeher. In August of 2009, DEP issued an Administrative Order reporting that Fleeher had numerous violations of DEP Permits and Clean Streams Law dating as far back in its operations to February of 1993.
With regard to Commission complaints and violations, on August 3, 2008, Steve Drazick, a customer of Fleeher, filed a Formal Complaint with the Commission against Fleeher requesting that a collapsed Fleeher service line under the road in front of his home be repaired by Fleeher. This matter was scheduled for hearing on January 13, 2009, with the Office of Administrative Law Judge of the Commission. However, on this same date, the parties met and amicably resolved the issues, resulting in a settlement. Additionally, Fleeher failed to file its 2008, 2009, and 2010 Annual Reports with the Commission. The 2007 Annual Report was the last Annual Report Fleeher filed with the Commission. Fleeher violated 66 Pa.C.S. § 504 by failing to file annual reports for 2008, 2009, and 2010.
By Administrative Order of August 9, 2009, the Department of Environmental Protection (DEP), pursuant to Clean Streams Law and Pennsylvania Sewage Facilities Act, ordered CTMA to take over the existing sewage facilities of Fleeher. CTMA and Fleeher appealed the DEP determination to the Environmental Hearing Board. However, CTMA and Fleeher decided to discontinue the appeal and amicably resolve the matter. On February 15, 2011, CTMA entered into a resolution accepting the terms of DEP's proposed Consent Order. On May 26, 2011, Fleeher entered into a Settlement Agreement and General Release (May 26 Agreement) with CTMA in which it agreed to abandon its sewage treatment plant and convey its sewage system to CTMA with certain materials, rights and easements necessary for conveyance of flows to CTMA's Millers Run.
On June 6, 2011, DEP then issued a Consent Order Agreement whereby CTMA and Fleeher agreed to resolve the matter and discontinue the appeal before DEP. The Chairman and Chief Judge of the Environmental Hearing Board of DEP issued an order dated June 15, 2011, marking the Appeal by Fleeher and CTMA closed and discontinued.
Paragraph nine of the May 26 Agreement stated that, ''Fleeher shall immediately notify the PUC of the impending cessation of its sewage treatment operations and take all actions necessary to comply with and satisfy PUC regulations in a timely manner so as to avoid any delays or violations of the parties' Consent Order and Agreement with the PaDEP.'' At no time did Fleeher contact the Commission regarding the cessation of its sewage treatment operations.
Discussion
As part of Prosecutory Staff investigation into this matter, Staff contacted Bruce M. Herschlag, Counsel for the Department of Environmental Protection (DEP). On April 7, 2011, Mr. Herschlag advised Prosecutory Staff that Fleeher and CTMA had agreed in principle to resolve the matter. All parties were ready to sign the agreement, when a landslide occurred in the subdivision damaging a pump station and force main in the sewer system. To keep the agreement intact, Fleeher agreed to repair the sewer system. After further consideration, Fleeher and CTMA decided it would be better to eliminate the damaged pump station instead of repairing it. Fleeher then conveyed an easement to CTMA to allow it to build the necessary gravity sewer and this easement was also reflected in the final agreement. Mr. Herschlag advised Prosecutory Staff that Fleeher and CTMA then entered into a Consent Order and Agreement, and that DEP had closed the appeals of the August 5, 2009 Order issued by DEP. He also advised that DEP had issued a January 11, 2010 Cause and Effect Survey documenting that Fleeher had ''an adverse effect'' on the receiving stream.
On July 27, 2011, Jeff Hollowood, counsel for CTMA, advised the Commission that Fleeher is now offline and its sewage system has been bypassed. He further advised that CTMA has taken over the Fleeher customers; and that CTMA had been directly billing the former Fleeher customers as of July 5, 2011.
On June 23, 2011, and again on July 28, 2011, Prosecutory Staff contacted counsel for Fleeher advising Fleeher to file an Application to Abandon and Transfer its Certificate of Authority with the Commission and stating that Fleeher's actions of allowing another entity to serve the public without first receiving Commission review and approval of an application to abandon its certificate, is illegal, a violation of the Public Utility Code, and subject to fines and such other actions that the Commission may deem necessary. 66 Pa.C.S. §§ 1102(a)(2), and 3301. Prosecutory Staff did not hear back from Fleeher or its counsel regarding filing an application to abandon.
A certificate of public convenience is a privilege and not a contract or property right under which the holder acquires vested rights. Western Pennsylvania Water Company v. PA Public Utility Commission, 311 A.2d 370 (Pa. Cmwlth. 1973). As such, a certificate of public convenience may be revoked where the utility fails to perform its essential service functions to the public. In the instant case, it appears that Fleeher is no longer performing any services for the public. The services it was permitted to perform by its certificate are now being provided by CTMA. Thus, Fleeher no longer has any facilities that provide service to the public. Nor has Fleeher filed its annual reports as required by Commission regulations. Based upon the foregoing, we find that Mrs. Fleeher is no longer capable of operating Fleeher in a lawful manner and has failed to provide ''adequate, efficient, safe and reasonable service and facilities'' in accordance with its statutory duty under Section 1501 of the Public Utility Code, 66 Pa.C.S. § 1501.
The Commission puts the industry on notice that we will not hesitate to invoke our authority under the Public Utility Code to ensure timely compliance with our regulations and orders including the ordering of such other remedy as the Commission may deem appropriate. 66 Pa.C.S. §§ 501, 504, 1501, and 3301. Based on these circumstances, we tentatively conclude that it is appropriate to revoke Fleeher's certificate of public convenience. Furthermore, the Commission may take other appropriate action, including the imposition of penalties under section 3301, in lieu of cancellation, if Fleeher seeks to maintain its certificate of public convenience; Therefore,
It Is Ordered That:
1. Revocation of Fleeher Sewage Treatment Plant's certificate of public convenience is hereby tentatively approved as being in the public interest.
2. The Secretary serve a copy of this Tentative Order upon the Office of Consumer Advocate, the Office of Small Business Advocate, and the Bureau of Investigation and Enforcement, and also cause a copy of this Tentative Order to be published in the Pennsylvania Bulletin with a 30-day comment period.
3. Absent the filing of adverse public comment within 30 days after publication in the Pennsylvania Bulletin, this Tentative Order shall become final without further action by the Commission.
4. Upon this order becoming final, and without further action by the Commission, the certificate of public convenience held by Fleeher Sewage Treatment Plant at A-98057-73 shall be canceled, and Fleeher Sewage Treatment Plant's name stricken from all active utility lists maintained by the Commission's Bureau of Technical Utility Services and the Assessment Section of the Bureau of Administrative Services.
ROSEMARY CHIAVETTA,
Secretary[Pa.B. Doc. No. 12-170. Filed for public inspection January 27, 2012, 9:00 a.m.]
