NY Pub Serv L § 89-C (2021)
2021 New York Laws PBS - Public Service Article 4-B - Provisions Relating to Water 89-C - General Powers of Commission in Respect to Water Supply.

§ 89-c. General  powers  of commission in respect to water supply. The commission:  1.  Shall  have  general  supervision  of  all  water-works corporations,  as  hereinbefore  defined,  having  authority  under  any general or special law or under any charter or franchise  to  lay  down, construct or maintain pipes, conduits, ducts or other fixtures in, on or under  the  streets, highways and public places of any municipality, for the purpose of furnishing or distributing water for domestic, commercial or public uses, and all water systems owned, leased or operated  by  any such  water-works  corporation;  provided,  however, that nothing herein contained shall be construed to delegate the general powers of the state department of health or of the water power and control commission or any of the powers and functions of either as  provided  by  law,  nor  shall anything  herein  contained  be  construed to impair nor to deprive such department or commission of its powers and functions as now provided  by law.   2.  Shall  have power of its own motion to examine and investigate the methods employed by water-works corporations in delivering and supplying water and furnishing  equipment,  and  shall  have  access  through  its members  or through an officer or employee specially authorized by it to make such examinations and investigations to all parts  of  the  systems owned,  used  or  operated  for  the  distribution  of water by any such corporation.   3. Shall have power, in its discretion, to prescribe  uniform  methods of  keeping  accounts,  records  and books to be observed by water-works corporations. It may also, in its discretion, prescribe by  order  forms of  accounts,  records  and  memoranda  to be kept by such corporations. Notice of alterations by the commission in the required method  or  form of  keeping  a system of accounts shall be given to such corporations by the commission at least six months before the same  shall  take  effect. Any  other  and additional forms of accounts, records and memoranda kept by such corporations shall be subject to examination by the commission.   4. Shall have power to examine all water-works corporations  and  keep informed as to the methods, practices, regulations and property employed by  them  in  the transaction of their business. Whenever the commission shall be of the opinion, after a hearing had upon its own motion or upon complaint, that the rates, charges or classifications  or  the  acts  or regulations  of  any such corporation are unjust, unreasonable, unjustly discriminatory, or unduly preferential, or in any wise in  violation  of any  provision  of  law, the commission shall determine and prescribe in the manner  provided  by  and  subject  to  the  provisions  of  section eighty-nine-j  of  this  chapter, the just and reasonable rates, charges and classifications thereafter to be enforced  for  the  service  to  be rendered, notwithstanding that a different rate or charge has heretofore been   prescribed  by  general  or  special  statute,  contract,  grant, franchise, condition, consent or  other  agreement,  and  the  just  and reasonable  acts  and  regulations to be done and observed; and whenever the commission shall be of opinion, after a hearing  had  upon  its  own motion  or upon complaint, that the property, equipment or appliances of any  such  corporation  are  unsafe,  inefficient  or  inadequate,   the commission  shall  determine  and  prescribe  the  safe,  efficient  and adequate property, equipment  and  appliances  thereafter  to  be  used, maintained and operated for the security and accommodation of the public and in compliance with the provisions of law and of their franchises and charters;  provided, however, that in its determination and prescription of safe, efficient and adequate property, equipment  and  appliances  as herein  provided any such property, equipment and appliances theretofore approved by the water power and control commission, or its  predecessor, shall be deemed to have been adequate, safe and efficient at the time of  such approval. Nothing herein contained shall be deemed to dispense with any  approval of work by the water power and control commission required by the conservation law; and if such an approval pertains to  work  done pursuant  to  such  determination  or prescription of the public service commission, such approval shall be conclusive that the work was done  in compliance with such determination or prescription.   5.  Shall  have power to require every water-works corporation, and it shall be the duty of every water-works corporation, as defined  by  this chapter,  to  file with the commission an annual report, verified by the oath of the president, vice-president, treasurer, secretary, manager, or receiver, if any, or by the  person  required  to  file  the  same.  The verification  shall  be made by said official holding office at the time of filing said report, and if not made upon the knowledge of the  person verifying  the  same, shall set forth the sources of his information and the grounds of his belief as to any matters not stated  to  be  verified upon  his  knowledge.  The report shall show in detail (a) the amount of its  authorized  capital  stock  and  the  amount  thereof  issued   and outstanding;  (b)  the  amount of its authorized bonded indebtedness and the amount of its bonds and other  forms  of  evidence  of  indebtedness issued  and  outstanding;  (c)  its receipts and expenditures during the preceding year; (d) the amount paid as dividends upon its stock  and  as interest upon its bonds; (e) the names of its officers and the aggregate amount  paid  as  salaries  to  them and the amount paid as wages to its employees; (f) the location of its plant or plants and  system,  with  a full  description  of its property and franchises, stating in detail how each franchise stated to be owned was acquired; and (g) such other facts pertinent to the operation and maintenance of the plants and system, and the affairs of such person or corporation as  may  be  required  by  the commission.  Such reports shall be in the form, cover the period, and be filed at the time prescribed by the commission. The commission may, from time to time, make changes and additions in such forms.  When  any  such report  is  defective  or believed to be erroneous, the commission shall notify the corporation making such report to amend  the  same  within  a time  prescribed  by  the  commission.  Any such corporation which shall neglect to make any such report or which shall fail to correct any  such report within the time prescribed by the commission shall be liable to a penalty  of one hundred dollars and an additional penalty of one hundred dollars for each day after  the  prescribed  time  for  which  it  shall neglect  to  file or correct the same, to be sued for in the name of the people of the state of New York,  if  ordered  by  the  commission.  The amount  recovered  in any such action to be paid to the commission shall be paid into the state treasury and be credited to the general fund. The commission, for cause shown, may extend  the  time  prescribed  and,  by compromise,  may  accept  less  than  the  amount  of such a penalty, in settlement thereof.   6. Shall have power, either  through  its  members  or  inspectors  or employees  duly authorized by it, to enter in or upon and to inspect the property, buildings, plants, pump houses, ducts, conduits and offices of any such water-works corporation.   7. Shall  have  power  to  examine  the  accounts,  books,  contracts, records,  documents  and papers of any water-works corporation, and have power, after a hearing, to prescribe by  order  the  accounts  in  which particular  outlays  and receipts shall be entered, charged or credited. At any such hearing the burden of proof shall be on such corporation  to establish  the  correctness  of  the  accounts in which such outlays and receipts have been entered, and the commission may suspend a  charge  or credit pending submission of proof by such corporation.    §  8.  Shall  have  power  to  compel,  by  subpoena  duces tecum, the production  of  any  accounts,  books,  contracts,  records,  documents, memoranda  and  papers.  In lieu of requiring production of originals by subpoena duces tecum the commission  or  any  commissioner  may  require sworn  copies  of  any  such  books,  records,  contracts, documents and papers, or any parts thereof, to be filed with it.  The  commission  may require  of  all  such  water-works  corporations  specific  answers  to questions upon which the commission may need information, and  may  also require such corporations to file periodic reports in the form, covering the  period  and filed at the time prescribed by the commission. If such corporation shall fail to make specific answer to any question or  shall fail to make a periodic report when required by the commission as herein provided  within  the  time and in the form prescribed by the commission for the making and filing of any such report or answer, such corporation shall forfeit to the state the sum of one hundred dollars for  each  and every day it shall continue to be in default with respect to such report or  answer. Such forfeiture may be recovered in an action brought by the commission in the name of the people of  the  state  of  New  York.  The amount recovered in any such action, or paid to the commission, shall be paid  into  the  state treasury and be credited to the general fund. The commission, for cause shown, may by  compromise  accept  less  than  the amount of such forfeiture, in settlement thereof.   9.  Shall have power in all parts of the state, either as a commission or through its members, or through  an  officer  or  employee  specially authorized   to   conduct  an  investigation  or  hearing,  to  subpoena witnesses, take testimony and  administer  oaths  to  witnesses  in  any proceeding  or  examination  instituted before it, or conducted by it in reference to any matter within its jurisdiction under this article.   10. (a) Shall have power to require every water-works  corporation  to file with the commission and to print and keep open to public inspection schedules showing all rates and charges made, established or enforced or to  be  charged  or enforced, all forms of contract or agreement and all rules and regulations relating to rates, charges or service used  or  to be used, and all general privileges and facilities granted or allowed by such  corporation;  but  this  subdivision  shall  not  apply  to state, municipal or federal contracts.  (b) No change shall be made in any rate or charge, or in any  form  of contract  or  agreement  or any rule or regulation relating to any rate, charge or service, or in any general privilege or facility, which  shall have  been  filed  by such a corporation, in compliance with an order of the commission, except after thirty days' notice to the  commission  and to  each  county,  city,  town  and  village  served by such water-works corporation which had filed with  such  corporation,  within  the  prior twelve  months, a request for such notice and which shall be affected by such change and publication of a notice to the public of  such  proposed change once in each week for four successive weeks in a newspaper having general  circulation  in  the  county  or  counties containing territory affected by the proposed change, which notice shall  plainly  state  the changes proposed and when the change will go into effect. The commission for  good  cause  shown  may, except in the case of major changes, allow changes to take effect prior to the end of such  thirty-day  period  and without  publication of notice to the public under such conditions as it may prescribe. The commission may  delegate  to  the  secretary  of  the commission  its  authority  to approve a change to a schedule postponing the effective date of such schedule previously filed with the commission and to allow for good cause shown the postponement to take effect  prior to  the  end of such thirty-day period and without publication of notice to the public.  (c) For the purpose of this subdivision, "major changes" shall mean an increase in the rates and charges which  would  increase  the  aggregate revenues  of  the  applicant  more  than  the  greater  of three hundred thousand dollars or two and one-half  percent,  but  shall  not  include changes  in  rates,  charges or rentals allowed to go into effect by the commission or made by the utility pursuant to an order of the commission after hearings held upon notice to the public.  (d) No such corporation shall charge, demand,  collect  or  receive  a greater or less or different compensation for any service rendered or to be  rendered  than the rates and charges specified in its schedule filed and in effect; nor shall any such corporation refund  or  remit  in  any manner  or  by  any  device  any  portion  of  the  rates  or charges so specified, nor extend to any person any form of contract  or  agreement, or  any rule or regulation, or any privilege or facility, except such as are  regularly  and  uniformly  extended  to  all  persons  under   like circumstances.  (e)  The  commission  shall  have power to prescribe the form of every such schedule and from time to time prescribe by order such  changes  in the  form  thereof as may be deemed wise. The commission shall also have power to establish such rules and regulations to carry into effect  this subdivision  as it may deem necessary, and to modify or amend such rules or regulations from time to time.  (f)  Whenever  there  shall  be  filed  with  the  commission  by  any water-works  corporation  any  schedule stating a new rate or charge, or any change in  any  form  of  contract  or  agreement  or  any  rule  or regulation  relating  to  any rate, charge or service, or in any general privilege or facility, the commission may, at any time within sixty days from the date when such schedule would or has become  effective,  either upon complaint or upon its own initiative, and, if it so orders, without answer  or other formal pleading by the interested corporation, but upon reasonable notice, hold a hearing concerning the propriety of  a  change proposed by the filing. If such change is a major change, the commission shall  hold  such  a hearing. Pending such hearing and decision thereon, the commission, upon filing with such schedule  and  delivering  to  the corporation  affected  thereby  a  statement  in  writing of its reasons therefor, may suspend the operation of such  schedule,  but  not  for  a longer  period  than one hundred and twenty days beyond the time when it would otherwise go into effect. After a full hearing, whether  completed before  or  after the schedule goes into effect, the commission may make such order in reference thereto as would be proper in a proceeding begun after the rate, charge, form of contract or agreement, rule, regulation, service, general privilege or facility had become effective. If any such hearing cannot be concluded within the period  of  suspension  as  above stated,  the  commission  may extend the suspension for a further period not exceeding six months.  (g) The commission may, as authorized by section eighty-nine-j of this article,  establish  temporary  rates  or  charges  for  any  period  of suspension under this section.  (h)  At any hearing involving a rate, the burden of proof to show that the change or proposed change if proposed by the  corporation,  or  that the  existing  rate,  if  it is proposed to reduce the rate, is just and reasonable shall be upon the corporation; and the commission may give to the hearing and decision of such questions  preference  over  all  other questions pending before it.  (i) The schedule, rates, charges, form of contract or agreement, rule, regulation, service, general privilege or facility in force when the new schedule,  rate,  charge,  form  of contract, rule, regulation, service, general privilege or facility was filed shall continue in  force  during  the  period  of  the  suspension unless the commission shall establish a temporary rate or charge as authorized by section eighty-nine-j of  this article.   11.  In case any water-works corporation is engaged in carrying on any business other than owning, operating or managing a water system,  which other  business  is  not  otherwise  subject  to the jurisdiction of the commission,  and  is  so  conducted  that  its  operations  are  to   be substantially  kept  separate  and  apart  from  the  owning, operating, managing or controlling  of  such  water  system,  said  corporation  in respect  of  such  other  business  shall  not  be subject to any of the provisions of this chapter and shall not  be  required  to  procure  the assent  or  authorization  of  the  commission  to any act in such other business or to make any report in respect thereof. But this  subdivision shall  not  restrict or limit the powers of the commission in respect to the owning, operating, managing or controlling by  such  corporation  of such  water  system,  and  said  powers  shall include also the right to inquire as to,  and  prescribe  the  apportionment  of,  capitalization, earnings, debts and expenses fairly and justly to be awarded to or borne by  the ownership, operation, management or control of such water system as distinguished from such other business. In  any  such  case,  if  the owning,  operating,  managing or controlling of such water system by any such corporation is  wholly  subsidiary  and  incidental  to  the  other business  carried  on  by  it  and  is  inconsiderable in amount and not general in its character, the commission may  by  general  rules  exempt such  corporation  from making full reports and from keeping of accounts as to such subsidiary and incidental business.   12. The commission  shall  have  power  to  require  each  water-works corporation  to  establish  classifications  of  service  based upon the quantity used, the time when used,  the  purpose  for  which  used,  the duration  of  use  and  upon  any other reasonable consideration, and to establish in connection therewith just and  reasonable  graduated  rates and  charges; and it shall have power, either upon complaint or upon its own motion, to require such changes in such classifications,  rates  and charges as it shall determine to be just and reasonable.   13.  The commission, of its own motion or upon complaint of any person or corporation aggrieved, may  investigate  and  determine  whether  the property  of any corporation or person actually used within the state in the business of the  distribution,  sale  or  furnishing  of  water  for domestic,  commercial  or public uses, exclusive of property used solely for or  in  connection  with  the  business  of  bottling,  or  selling, distributing  or  furnishing  bottled water, is of a value exceeding ten thousand dollars. Where such value is ten thousand dollars or less,  the commission  may  require  such persons and corporations to file with the commission simplified annual reports, in  a  form  and  containing  such matters  as the commission shall prescribe, and may prescribe simplified forms of accounts to be kept by them.   14. (a) Notwithstanding any other provision of law  to  the  contrary, whenever  real  property  owned by a water-works corporation is exempted from taxation  pursuant  to  the  provisions  of  section  four  hundred eighty-five-d of the real property tax law the rate or charge imposed by such  corporation  within  the  taxing  jurisdiction  providing for such exemption shall be set by the commission so  as  to  reflect  fully  the reduction in cost of service resulting therefrom.  (b)  Notwithstanding  any  other  provision  of  law  to the contrary, whenever  a  water-works  corporation  is  the  recipient  of  operating assistance  provided  by  a  city  pursuant to the provisions of section twenty-one-e of the general city law, the rate or charge imposed by such  corporation within such city shall be set by the  commission  so  as  to reflect fully the revenues to such corporation resulting therefrom.   15.  The commission shall provide for management and operations audits of water-works corporations having annual gross revenues  in  excess  of ten  million  dollars. Such audits shall include, but not be limited to, an investigation of the corporation's construction program  planning  in relation  to  the  needs  of  its  customers for reliable service and an evaluation of the efficiency of the company's operations. The commission shall have discretion to have such audits performed by its staff, or  by independent auditors.   In  every  case  in  which  the  commission  chooses to have the audit provided for in this subdivision performed by independent  auditors,  it shall  have  authority  to  select  the  auditors  and  to  require  the corporation being audited to enter into a  contract  with  the  auditors providing  for  their  payment  by such corporation. Such contract shall provide further that the auditors shall work for and under the direction of the  commission  according  to  such  terms  as  the  commission  may determine are necessary and reasonable.   The  commission  shall  have  authority  to  direct the corporation to implement any recommendations resulting from such audits that  it  finds to be necessary and reasonable.   Upon  the  application of a water-works corporation for a major change in rates as defined in subdivision ten of this section,  the  commission shall  review  the  corporation's  compliance  with  the  directions and recommendations made previously by the commission, as a  result  of  the most  recently  completed  management  and  operations  audit undertaken pursuant to the provisions of this  subdivision.  The  commission  shall incorporate the findings of such review in its opinion or order.   16.  Notwithstanding  any  general or special law, rule or regulation, the commission shall have the power to provide for  the  refund  of  any revenues  received  by  any  water-works  corporation  which  cause  the corporation  to  have  revenues  in  the  aggregate  in  excess  of  its authorized  rate of return for a period of twelve months. The commission may initiate a proceeding with  respect  to  such  a  refund  after  the conclusion of any such twelve month period.   17.  The  commission  shall  have  power  to  require each water-works corporation to establish a process for  residents  of  any  cooperative, condominium  or  multi-family  dwelling  with  five  or more residential units, which uses a master meter to distribute water to such  residents, to  obtain  non-billing  related  information  regarding the delivery of water including but  not  limited  to  service  updates,  water  quality notices and other information deemed essential to water consumers.