On November 27, 2023, Tomlinson Public Service District (Tomlinson) and
The Newell Company (Newell) (Collectively Applicants) filed a Joint Petition for the
Commission’s consent and approval for Tomlinson to acquire the water utility
assets of Newell pursuant to the November 14, 2023 Asset Purchase Agreement.
On April 10, 2024, the Commission issued an Order that denied the
Applicants’ request for a waiver of notice and ordered the Applicants to publish the
Notice of Filing attached to the April 10, 2024 Order as Attachment A.
On April 12, 2024, the Applicants filed a letter (April 12 Letter) requesting
that the Commission revise the Notice of Filing.

The April 12 Letter noted that the Water User Agreement between Fiesta
Tableware Company (Fiesta) and Tomlinson contemplated that Fiesta would
purchase “up to 8,333,333.33 gallons of water per month and up to 100,000,000.00
gallons of raw water annually.”’ The Water User Agreement further contemplated
that the rate to be paid by Fiesta for raw water would be “the rate determined by
Joint Petition. Exhibit 4 at Bates 25 the Public Service Commission of West Virginia, which rate may be changed from time to time.”* The Water User Agreement further provides that “Fiesta agrees to
pay for all potable water service based upon Tomlinson’s current tariff on file with
the PSC, which tariff may be changed from time to time.” The Commission notes that when it developed a reasonably descriptive notice there were no rates for Tomlinson other than its tariff rates and that neither Newell nor Tomlinson have a raw water rate in their tariffs. Furthermore, although
the Water User Agreement contemplates that Fiesta will pay the Tomlinson tariff
for potable water, there was no information submitted indicating the amount of
potable water taken by Fiesta and the amount of production water or non-potable
water taken by Fiesta. We also noted that Fiesta is currently paying Newell under
its tariff, as opposed to a separate non-potable water contract, which would
indicate that the system is currently engineered and designed to deliver only
potable water to Fiesta.
The lack of information and detail, as well as the lack of even a proposed
separate non-potable water rate for Fiesta, or any information explaining how
Tomlinson is going to switch Fiesta from potable to non-potable water immediately
upon closing of the acquisition or how it is going to charge a rate to be determined
by the Commission immediately on closing, when no such rate has even been
proposed effectively left the Commission with no choice but to develop the Notice
which it did. The lack of information remains a concern. However, Fiesta should
be aware that it will pay something other, and presumably less, than the Tomlinson
tariff rate, even if it receives treated water for production purposes which
Tomlinson will categorize as non-potable water under its Water User Agreement
with Fiesta. Under these circumstances, notice to Fiesta is not necessary, and the
notice to other customers can only divulge the proposed increases to those
customers and be silent on the effect of the acquisition on Fiesta.
The Commission will revise the Notice of Filing attached to this Order as
Attachment A to eliminate any reference to the monthly billings to Fiesta if the
acquisition is finalized and to include only the statement that Fiesta will pay
Tomlinson for an unknown amount of raw water at a rate to be determined and an
unknown amount of treated water at the Tomlinson rates (which are higher than
the Newell rates).