IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard C. Culbertson

, :

Petitioner :

:

v. :

: Pennsylvania Public Utility : Co mmission

, : No. 506 C .D. 2023

Respondent : Submitted: July 5, 2024

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE STACY WALLACE, Judge HONORABLE BONNIE BRIGANCE LEADBETTER

, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE COVEY FILED: August 27, 2024

Richard C. Culbertson ( Petitioner ) petitions this Court for review

(Review Petition) of the Pennsylvania Public Utility Commission’s (Commission)

April 20, 2023 order (April 2023 Order) granting Columbia Gas of Pennsylvania,

Inc .’s (Columbia) Petition for A pproval of its T hird Long

- Term Infrastructure

Improvement Plan (LTIIP) ( Third LTIIP Petition )

, wh erein the Commission

approved Columbia’s third LTIIP (Third LTIIP)

. Petitioner present s two issues for

this Court’s review: (1) w hether the Commission denied Petitioner and others due

process; and (2) whether the Commission failed to exercise due diligence when

considering and granting the Third LTIIP Petition

.

Also before this Court is the Commission’s Application for Relief in

the Nature of a Motion to Dismiss the Review Petition (Application) 1 for the

1 The rein, the Commission also requested a stay of the briefing schedule pending the Application’s disposition

. By August 17, 2023 Order , this Court stayed the briefing schedule2

following reasons: ( 1) Petitioner lacks standing to challenge the Commission ’ s April

2023 O rder because Petitioner was not aggrieved by that order; ( 2) Petitioner ask s

this Court to issue an advisory opinion with respect to the April 2023 O rder, which

is beyond this Court ’ s jurisdiction; ( 3) Petitioner is improperly attempting to enforce

the due process rights of other individuals; and ( 4 ) Petitioner waived any challenges

to the April 2023 O rder based on claims that Columbia’s T hird LTIIP did not comply

wit h the Public Utility Code 2 (Code) and related Commission R egulations

, and that

the Commission acted arbitrarily and capriciously in granting the T hird LTIIP

Petition

. After review, this Court grants the Commission’s Application and

dismisses the Review Petition

.

Background

Pursuant to Act 11 of 2012 3 (Act 11)

, jurisdictional water and

wastewater utilities, electric distribution companies, and natural gas distribution

companies

, or a city natural gas distribution operation

, may implement a Distribution

System Improvement Charge (DSIC) to recover reasonable and prudent costs

incurred to repair, improve

, or replace certain eligible distribution property 4 that is

part of the utility ’ s distribution system. Act 11 states that as a precondition to DSIC

implementation, a utility must file an LTIIP with the Commission consistent with

Section 1352 of the Code

, 66 Pa.C.S. § 1352. 5

pending consideration of the Application. By August 30, 2023 Order , this Court lifted the stay

and directed the parties to address both the Review Petition and the Application in their briefs on

the merits. Notably, Petitioner ’s brief does not address the Application.

2 66 Pa.C.S. § § 101

- 3316

. 3 The Act of Feb . 14, 2012, P.L. 72

, No. 11, effective April 16, 2012, amended Chapters 3,

13

, and 33 of the Code

.

4 Section 1351 of the Code, 66 Pa.C.S. § 1351

, defines e l igible property

. 5 Section 1352 of the Code states:3 In accordance with Section 121.3 (a) of the Commission ’s DSIC

R egulations, DSIC

- eligible utilities must include the following elements in their

LTIIP s : (1) t ype and age of eligible property; (2) s chedule for planned repair and

replacement; (3) l ocation of the eligible property; (4) r easonable quantity estimates

of the property to be improved; (5) p rojected annual expenditures and measures to

ensure a cost effective plan ; (6) m anner of accelerating replacement of aging

(a) Submission

. — In order to be eligible to recover costs under [S] ection 1353 [of the Code] (relating to [DSIC] ), a utility must

submit a [n] [L T IIP]

. The plan shall include the following:

(1) Identification of the types and age of eligible property owned or operated by the utility for which the utility would seek recovery under this subchapter.

(2) An initial schedule for the planned repair and replacement of eligible property.

(3) A general description of the location of the eligible property.

(4) A reasonable estimate of the quantity of eligible property to be improved.

(5) Projected annual expenditures to implement the plan and measures taken to ensure that the plan is cost effective.

(6) The manner in which the replacement of aging infrastructure

will be accelerated and how the repair, improvement [,] or replacement will ensure and maintain adequate, efficient, safe,

reliable [,] and reasonable service.

(7) If the plan is not adequate and sufficient to ensure and maintain adequate, efficient, safe, reliable [,] and reasonable service, the [C] ommission shall order a new or revised plan.

(b) Periodic review

. (1) The [C] ommission shall promulgate regulations for the periodic review at least once every five years of long

- term infrastructure plans. The regulations may authorize a utility to revise, update [,] or resubmit a plan as appropriate.

(2) The regulations shall ensure that a [DSIC] shall terminate if

the [C] ommission determines that the utility is not in compliance with the approved plan.

66 Pa.C.S. § 1352

.4

infrastructure

, and how repair, improvement

, or replacement will maintain safe and

reliable service; (7) a workforce management and training program; and (8) a
description of outreach and coordination activities with other utilities, the

Pennsylvania Department of Transportation

, and local governments on planned

maintenance/construction projects. See 52 Pa. Code § 121.3 (a).

On December 7, 2012, Columbia filed its first LTIIP petition (First

LTIIP Petition )

, a 5

- year plan with projected capital spending at $656.5 million. 6

The Commission granted the First LTIIP Petition on March 14, 2013. On May 5,

2017, Columbia jointly filed a petition to modify its F irst LTIIP Petition , and a

petition for a second LTIIP (Second LTIIP Petition )

, propos ing an increase in

investment from $116.9 million to $230 million in 2017

. Columbia ’ s Second LTIIP

Petition proposed $1.36 billion in spending over 5 years, which wa s a 107% increase

over the First LTIIP Petition ’ s proposed spending. On September 21, 2017, the

Commission approved Columbia ’ s proposed modification to its F irst LTIIP Petition

,
and approved Columbia’s Second LTIIP Petition

.

On December 28, 2022, Columbia filed the Third LTIIP Petition

, seeking approval of its T hird LTIIP

, a five

- year plan covering 2023 through 2027.

While Columbia ’ s First and Second LTIIP Petition s focused primarily on replacing

cast iron, bare steel, and wrought iron mains

, in its T hird LTIIP Petition

, Columbia

represented to the Commission that risks beyond bare steel and wrought iron also

6 The Commission observed:

Columbia, as a[ natural gas distribution company ], provides natural gas service to approximately 440,000 residential, commercial, and industrial customers in portions of 26 counties throughout its greater York and Western Pennsylvania service territories. Columbia provides service through approximately 7,700 miles of mains and 425,038 services that it owns, operates[,] and maintains.

April 2023 Order at 5.5

need ed to be addressed. Thus, in the Third LTIIP Petition , Columbia explained it

plans to address risks with coated steel segments that were installed before 1971, as

it has found that many such pipe sections were ineffectively coated. According to

Columbia

, as the coating becomes ineffective over time, the pipe segments

demonstrate the same leakage characteristics of bare steel pipe. Columbia further

informed the Commission that it w ould focus on addressing risks associated with

first

- generation

, or pre

- 1982

, plastic pipe found to be susceptible to brittle

- like

cracking and posing potential safety hazard s and reliability risk s

. According to

Columbia, first

- generation plastic failures are difficult to predict, as they do not

always exhibit a leak history before they fail.

On January 19, 2023, Petitioner filed comments regarding the Third

LTIIP Petition

. See Reproduced Record at 33

. 7 Therein, Petitioner alleged that

Columbia’s T hird LTI IP did not comply with the Code and Regulation requirements

,
that the Third LTIIP ’s approval will not lead to just and reasonable rates, and said

approval would diminish private property rights. On January 27, 2023, t he

Commission’s Bureau of Investigation & Enforcement (BIE) filed comments

,
contend ing that Columbia’s Distribution Integrity Management Plan has

consistently identified bare steel pipe s as the riskiest segments on Columbia’s

system and that deviation from Columbia’s previo usly established bare steel

replacement rates and projections wa s not justified. On January 29, 2023, Petitioner

7 Pennsylvania Rule of Appellate Procedure 2173 requires a reproduced record to “ be numbered . . . in Arabic figures . . . followed in the reproduced record by a small a

, thus 1a, 2a, 3a,

etc. , and followed in any supplemental reproduced record by a small b, thus 1b, 2b, 3b, etc. ”

Pa.R.A.P. 2173. Petitioner did not number the pages of his R eproduced R ecord , and the Commission incorrectly numbered the pages of its S upplemental R eproduced R ecord by following

the page numbers with a small a. Accordingly, Petitioner’s R eproduced R ecord page numbers

herein reflect electronic pagination , and the Commission’s S upplemental R eproduced R ecord page numbers reflect the page number followed by a small a.6

filed a reply to BIE’s comments

. See Supplemental Reproduced Record (S.R.R.) at

240a.

On April 20, 2023, the Commission issued the April 2023 Order

granting the Third LTIIP Petition

. On May 11, 2023, Petitioner filed with the

Commission a motion for reconsideration of its April 2023 Order. On May 16, 2023,

the Commission rejected the motion for reconsideration as untimely. See S.R.R. at

1a. Petitioner appealed to this Court. 8

Commission’s Application

Preliminarily, this Court must consider the Commission’s Application

.
The Commission first contends that Petitioner does not have standing to bring this

appeal because he has not demonstrated a substantial, direct

, and immediate harm

and

, thus, is not aggrieved by the Commission’s April 2023 O rder

. The Commission

reasons:

[T] he Commission’s approval of . . . the . . . [ T hird] LTIIP

constitutes approval of Columbia[’s] plan for repairing and replacing eligible distributions system infrastructure for the benefit of all customers. It does not place any burden on [Petitioner]. In fact, it does not require [Petitioner] to do anything at all.

Application at 6.

Section 702 of the Administrative Agency Law declares that “[a] ny
person aggrieved by an adjudication of a Commonwealth agency who has a direct

8 “ This Court ’ s review of a [Commission] adjudication determines ‘ whether constitutional rights have been violated, an error of law has been committed, or the Commission ’ s findings and conclusions are, or are not, supported by substantial evidence. ’ Barasch v. [ Pa. ] Pub [

. ] Util [

. ]

Comm [ ’n ], 493 A.2d 653, 655 ( [Pa.] 1985). ” Schmukler v. Pa. P ub. Util. Comm’n , 302 A.3d 247,

250 n. 6 (Pa. Cmwlth. 2023 ) (quoting Twin Lakes Utils.

, Inc. v. Pa. Pub. Util. Comm ’ n , 281 A.3d 384, 389 n.5 (Pa. Cmwlth. 2022) )

.7

interest in such adjudication shall have the right to appeal therefrom . . . .” 2 Pa.C.S.

§ 702

.

T o have standing

. . . , the [party] must be aggrieved. A

[party] can demonstrate that he is aggrieved if he can establish that he has a “ direct

, immediate

, and substantial interest in the subject matter of the controversy. ” Mun [

. ] Auth [

. ] Borough of W [

. ] View v. Pub [

. ] Util [

. ] Comm [ ’n ]

, 41 A.3d 929, 933 (Pa. Cmwlth. 2012) (citation omitted) (emphasis in original). Our Supreme Court explained, in the seminal case William Penn Parking Garage, Inc. v. City of Pittsburgh

, . . . 346 A.2d 269, 283 ( [ Pa. ] 1975) (plurality), that standing requires the complaining party to show a “ harm to his interest, ” and the harm must be neither remote nor speculative. In addition, the complaining party must show “ some discernible adverse effect to some interest other than the abstract interest of all citizens in having others comply with the law. ” Id

. at 282.

Stated simply, standing requires the complainant to be

“ negatively impacted in some real and direct fashion. ” Markham v. Wolf

, . . . 136 A.3d 134, 140 ( [ Pa. ] 2016) (quoting Pittsburgh Palisades Park, LLC v. Commonwealth

, . . . 888 A.2d 655, 660 ( [ Pa. ] 2005)).

Sunoco Pipeline L.P. v. Dinniman , 217 A.3d 1283, 1287

- 8 8 (Pa. Cmwlth. 2019 ).

Further

,

[m] ere allegations of speculative future harm are insufficient to establish standing. See Ams. for Fair Treatment, Inc. v. Phila. Fed ’ n of Teachers , 150 A.3d 528, 536 (Pa. Cmwlth. 2016) ( “ The mere possibility that future events might occur that could [affect the a ppellants] . . . is not sufficient to establish the direct and immediate interest required for standing. ” ).

Gates v. City of Pittsburgh Historic Rev

. Comm ’ n , 254 A.3d 803, 810 (Pa. Cmwlth.

2021 ).

Petitioner states that he is “ ‘ aggrieved ’ and will be harmed in the future

with these huge amounts of accelerated expenditures. ” Answer to Application at 13.8

Further, he complains that

, as a landlord, the total cost of his tenants’ occupancy will

be excessive. The Commission responds that “[Petitioner] does not provide any

facts supporting his conclusory statements demonstrating any actual, direct, and

immediate harm. ” Application at 7. To the extent that Petitioner’s alleged harm

relates to increased rates, 9 the Commission contends that such harm is merely

speculative, and that Petitioner will have the opportunity to challenge any proposed

future rate increase in DSIC rate proceedings. See Sections 1354 10 and 1355 11 of the

Code, 66 Pa.C.S. §§ 1354, 1355.

Th is Court agrees with the Commission. I n fact, Columbia is not

authorized to increase rates simply as a result of the Commission’s April 2023 Order

. Any resulting rate change could only occur following DSIC rate proceedings

, during

9 Notably, here, it is not clear that Petitioner is even presently Columbia’s customer. In his Answer to the Application, Petitioner averred:

[Petitioner] is a residential real estate investor and now has four properties serviced by Columbia

. . . . [] [Petitioner] is “aggrieved” and will be harmed in the future with these huge amounts of accelerated expenditures. Anytime any of those properties are vacant

, he is a customer and will be paying Columbia’s increased distribution rates and charges. Secondly and most importantly, as a landlord , the total cost of occupancy by those leasing the property is excessive in comparison to Peoples

Gas.

Answer to Application at 12

- 13 (emphasis added)

. Thus, it appears that Petitioner acknowledges

that he will become a Columbia customer only if his properties become vacant.

10 Section 1354 of the Code provides

, in pertinent part: “ Utilities shall provide notice to customers in bill inserts or through other means as prescribed by the [C] ommission of the following: (1) Submission of the proposed [DSIC] and initial tariff. ” 66 Pa.C.S. § 1354

.

11 Section 1355 of the Code states:

Following the filing of a petition in compliance with [S] ection 1353 [of the Code] (relating to [DSIC] ), the [C] ommission shall, after notice and opportunity to be heard, approve, modify or reject the [DSIC] and initial tariff. The [C] ommission shall hold evidentiary and public input hearings as necessary to review the petition.

66 Pa.C.S. § 1355

.9

which Petitioner can participate and voice any relevant objection s

. Apart from the

possible impact s on his investment properties resulting from possible rate increases

constituting speculative harm , Petitioner identifies no other harm to himself beyond

claims amounting to “ the abstract interest of all citizens in having others comply

with the law.” Sunoco Pipeline , 217 A.3d at 1288 ( quoting William Penn Parking

Garage

, 346 A.2d at 282). Thus, aside from the po ssibility of the aforementioned

rate increase

- a speculative concern

- Petitioner does not show how he is impacted

by the Commission’s decision in “ some real and direct fashion.” Sunoco Pipeline

,
217 A.3d at 128 8 ( quoting Markham , 136 A.3d at 140). Accordingly , Petitioner

lacks standing to appeal

. 12

For all of the above reasons, this Court grants the Commission’s

Application and dismisses Petitioner’s Review Petition.

___________________________ ______ ANNE E. COVEY, Judge

Judge Fizzano Cannon did not participate in the decision in this matter.

12 Given this Court’s conclusion that Petitioner lacks standing, th is Court does not reach the parties’ other issues.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Richard C. Culbertson, :

Petitioner :

:

v. :

: Pennsylvania Public Utility : Commission, : No. 506 C.D. 2023

Respondent :

O R D E R

AND NOW, this 27 th day of August , 20 2 4

, this Court grants the

Pennsylvania Public Utility Commission’s Application for Relief in the Nature of a

Motion to Dismiss Richard C. Culbertson’s (Petitioner) Petition for Review ( Review

Petition) and dismisses Petitioner ’s Review Petition.

___________________________ ______ ANNE E. COVEY, Judge