Utility says PUC erred in decision

Pennichuck Water Works is claiming state regulators made 18 errors in last month’s written decision allowing the city of Nashua to take over the water utility company by eminent domain.

In an appeal filed Friday with the New Hampshire Public Utilities Commission, Pennichuck said the commission misinterpreted the state’s eminent domain law and failed to properly weigh the public interest of water customers who do not live in Nashua.

The motion for reconsideration, filed Friday, also said the commission failed to consider the harm a takeover would cause the water utility’s parent company, Pennichuck Corp., and its shareholders.

“We obviously believe that some significant errors were made that need to be rectified,” Duane Montopoli, Pennichuck Corp. chief executive officer, said in an interview Monday afternoon.

It’s rare for a utilities commission to throw out an entire ruling and start over, but commissioners could decide to fix anything they believe to be an error. If the commission rejects Pennichuck’s request for rehearing, the company plans to appeal the case to the New Hampshire Supreme Court.

Meanwhile, the city is challenging the $203 million sale price set by the commission. In its motion for reconsideration, filed Monday, the city asked the three-person commission to take a closer look at the dissenting opinion of Commissioner Clifton Below, who placed the value of Pennichuck Water Works closer to $151 million.

The city is also arguing the PUC should have allowed it to pursue a takeover of all three Pennichuck Corp.-owned utilities, including Pennichuck East Utility and Pittsfield Aqueduct.

The July 25 order allowing Nashua to take Pennichuck Water Works by eminent domain requires the city to create a $40 million mitigation fund to protect customers of the other two utilities. But the city argues that’s double the cost of their combined value.

“You’re making us set up a fund for more than double what they’re worth?” city lawyer Justin Richardson said Monday.

It’s unclear when the PUC will issue a decision on either motion.

Pennichuck’s criticism of the PUC’s decision is essentially twofold. The company claims the commission took the wrong approach to determining whether a sale to the city is in the public interest and that it failed to take into account some of the facts in setting the value at $203 million.

The company argues the PUC imposed conditions beyond its authority, used a patchwork approach to “fixing” aspects of Nashua’s proposal not in the public interest and failed to consider the broader implications of a sale for the company, state and people who don’t live in Nashua.

“The proposed taking imposes significant burdens on private rights,” the 28-page document said. “In addition to putting the state’s largest investor-owned utility essentially out of business . . . the ultimate owners of the property being taken – the shareholders of Pennichuck Corp. – will never be adequately compensated for the property being seized.”

Other criticisms include:

The PUC placed heavy emphasis on the municipal vote in which Nashua taxpayers approved a city acquisition, despite the fact that voters were not informed the city would pursue a takeover by eminent domain.

Some of the conditions imposed on Nashua as part of the taking will be imposed after the deal is complete, yet there is no requirement of ongoing oversight.

The commission did not consider Nashua’s ability to finance the acquisition or require proof that it can bond the $243 million.