Blackstone Valley Electric Co. v. Public Utilities Commission

542 A.2d 242, 1988 R.I. LEXIS 76, 1988 WL 55327
CourtSupreme Court of Rhode Island
DecidedMay 31, 1988
DocketNo. 87-174-M.P.
StatusPublished

This text of 542 A.2d 242 (Blackstone Valley Electric Co. v. Public Utilities Commission) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blackstone Valley Electric Co. v. Public Utilities Commission, 542 A.2d 242, 1988 R.I. LEXIS 76, 1988 WL 55327 (R.I. 1988).

Opinion

OPINION

KELLEHER, Justice.

This is a statutory petition for certiorari brought by the Blackstone Valley Electric Company (Blackstone) pursuant to G.L. 1956 (1984 Reenactment) § 39-5-1. Blackstone seeks review and reversal of an order issued by the Public Utilities Commission (commission). The challenged order denied Blackstone’s request to surcharge its customers for an increase in the cost of its purchased electricity.

The increase at issue was created by a cost of fuel adjustment that was billed to Blackstone by its wholesale supplier of electricity after the wholesaler, Montaup Electric Company (Montaup), discovered [243]*243that it had used more coal to produce power than was recorded on its books. Blackstone argues that this coal consumption adjustment is recoverable from its retail customers under the terms of the price adjustment clause of its federally approved tariff. The Division of Public Utilities and Carriers (division) opposes this cost pass-through to consumers because, it contends, Blackstone and Montaup exceeded the tariff's filing deadline by seeking reimbursement well after the authorized five-month adjustment period had expired.

The division also urges us to affirm the actions of the commission regarding the requested cost pass-through. The commission’s denial of Blackstone’s request was based on its belief that any approval of the proposed adjustment would constitute prohibited retroactive ratemaking. We disagree.

Before discussing retroactive ratemaking and the pertinent provisions of Blackstone’s tariff, we shall review the factual background of this dispute. Both Blackstone and Montaup are controlled by the same corporation, Eastern Utilities Associates (EUA), which is Blackstone’s parent corporation and the owner of all of Monta-up’s common stock. Blackstone purchases its electric power wholesale from Montaup at terms approved by the Federal Energy Regulatory Commission.

During the period beginning January 1, 1985, and extending through January 31, 1986, Montaup burned fuel from its inventory of coal located at its plant in Somerset, Massachusetts. When this coal was first delivered to Montaup, it was tested and determined to have an average moisture content of 4 percent. The coal, however, was stored outdoors where it was exposed to the vagaries of the New England climate. Tests conducted on the weathered stockpile in November 1985 and January 1986 indicated that the moisture content of Montaup’s coal had increased to an average of 7.8 percent. Coal with a higher moisture content, according to Blackstone’s expert witness, burns less efficiently than the same quantity of drier coal. Consequently, more coal was used to produce power than was recorded in Montaup’s accounting records.

In April 1986 Montaup adjusted its books to reflect the amount of coal actually burned during the period January 1, 1985, through January 31,1986, and in June 1986 it assessed Blackstone $354,722.49 as its share of the fuel cost increase. In October 1986 Blackstone sought approval from the commission to pass along this fuel cost to its retail customers. The commission twice deferred consideration of this matter. Eventually, in late February 1987, a public hearing was held to review Blackstone’s application.

During the hearing Blackstone presented three witnesses who were questioned by counsel for the division and by members of the commission. The first witness, EUA’s senior rate analyst, explained the reasons for Montaup’s coal adjustment. The next witness for Blackstone, an EUA manager, testified about the operation of Blackstone’s fuel adjustment clause. Finally, an outside expert for the utility was questioned on the subject of fuel prices in New England.

Two months after the hearing, the commission issued its written order and emphasized that “[t]he Commission is not ruling on the propriety of a coal consumption adjustment, but rather on its chronological applicability.”

Notwithstanding our limited power of review over commission rulings, In re Woonsocket Water Department, 538 A.2d 1011 (R.I.1988), we are compelled to quash the denial because it fails to give legal effect to the fuel provision in Blackstone’s tariff. Providence Gas Co. v. Burke, 119 R.I. 487, 380 A.2d 1334 (1977).

Blackstone’s filed tariff, R.I.P.U.C. No. 728, contains a fuel adjustment clause that went into effect on November 1, 1985. Like the fuel adjustment clause it replaced, R.I.P.U.C. No. 567, the November 1985 clause was designed in part to mitigate the financial risks to the utility created by volatility in the cost of its purchased fuel. We had occasion to describe such a provision in Providence Gas Co. v. Burke.

[244]*244“Such a clause usually provides for the fluctuation upward or downward of the rate charged to the consumer, reflecting, in accordance with a formula * * * changes in the cost of the fuel it uses to generate power. As the utility’s costs rise or fall, a corresponding increase or decrease in the prices charged to the consumer must occur. This is the reality of the marketplace. Otherwise, a utility runs the risk of becoming insolvent, or it may reap windfall profits. In a period of rapid increases in costs to the utility, solvency is a paramount consideration. At another time the situation may be reversed, and every effort must be made to avoid the windfall.
“The device which has been fashioned to take care of either eventuality has been variously labeled as an ‘automatic adjustment clause,' or ‘escalator clause' * * * or a ‘pass-through procedure.’ However the clause is entitled, it becomes part of the utility’s rate structure and serves to lessen the burden and expense to the utility, which would ultimately fall upon the consumer, of instituting and carrying out separate rate proceedings to justify the varying charges.” 119 R.I. at 490-91, 380 A.2d at 1336.

Blackstone’s adjustment clause calls for tri-annual estimates of its wholesale fuel costs. The clause also provides for the reconciliation of such costs for the previous five months by adjusting current fuel cost estimates. The pertinent section of the fuel adjustment clause reads as follows:

“In determining the estimated average fuel cost for any period, any differentials for the preceding five months between actual fuel costs incurred and attributable to consumption under rates subject to this clause and costs recovered under the clause shall be added to or subtracted from the subsequent estimate of fuel costs.”

The clause goes on to address two contingencies,1 but it does not specifically authorize recovery of costs incurred prior to the five-month reconciliation period. The division argues that the absence of such language is fatal to Blackstone’s appeal. More than seven months elapsed between the time Blackstone was assessed and the date of the hearing. Further, more than one year passed from the time Monta-up discovered its coal deficiency to the date of the commission hearing on the matter. This chronology, according to both the commission and the division, removed Blackstone’s requested cost recovery from the ambit of its fuel adjustment clause. We respectfully disagree.

Blackstone cannot be faulted for the postponement of its commission hearing to February 1987.

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Related

Providence Gas Company v. Burke
380 A.2d 1334 (Supreme Court of Rhode Island, 1977)
In Re Woonsocket Water Department
538 A.2d 1011 (Supreme Court of Rhode Island, 1988)
Providence Gas Co. v. Burke
475 A.2d 193 (Supreme Court of Rhode Island, 1984)
South County Gas Co. v. Burke
486 A.2d 606 (Supreme Court of Rhode Island, 1985)
Rhode Island Consumers' Council v. Smith
302 A.2d 757 (Supreme Court of Rhode Island, 1973)
Narragansett Electric Co. v. Burke
415 A.2d 177 (Supreme Court of Rhode Island, 1980)

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Bluebook (online)
542 A.2d 242, 1988 R.I. LEXIS 76, 1988 WL 55327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blackstone-valley-electric-co-v-public-utilities-commission-ri-1988.