City of Cleveland v. Public Utilities Commission

406 N.E.2d 1370, 63 Ohio St. 2d 62, 17 Ohio Op. 3d 37, 1980 Ohio LEXIS 773
CourtOhio Supreme Court
DecidedJuly 9, 1980
DocketNos. 79-1158 and 79-1173
StatusPublished
Cited by24 cases

This text of 406 N.E.2d 1370 (City of Cleveland v. Public Utilities Commission) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Cleveland v. Public Utilities Commission, 406 N.E.2d 1370, 63 Ohio St. 2d 62, 17 Ohio Op. 3d 37, 1980 Ohio LEXIS 773 (Ohio 1980).

Opinions

S WE ene Y, J.

Appellants present this court with basically eight alleged errors committed by the commission in reaching its order granting CEI’s rate increase. We will proceed to ascertain the reasonableness and lawfulness of the instant order, keeping in mind our often stated scope of review under R. C. 4903.13. See, e.g., Consumers’ Counsel v. Pub. Util. Comm. (1979), 58 Ohio St. 2d 108, 110.

I.

Both the city and Senior Citizens contend that the commission erred in allowing CEI’s $306 million investment in the Davis-Besse nuclear generating plant to be included in the rate base. Appellants initially assert that because Davis-Besse had not been proven reasonably free from significant design and construction defects, it was not “used and useful” as of the date certain, in accordance with R. C. 4909.15(A)(1). Appellants premise this argument on the fact that the plant was shut down numerous times during the test year and only generated a third of its unit capacity in 1978.1

This court has not previously addressed the question of whether a generating plant can be removed from a utility’s rate base because it is producing far below its capacity. However, we do note that the Pennsylvania Public Utility Commission recently resolved this issue, although in a some[64]*64what different context. See Penn. Pub. Util. Comm. v. Metro Edison Co. (1979), 29 P.U.R. 4th 502. Therein, the well-known nuclear accident at Three Mile Island on March 28, 1979, had severely crippled generating unit No. 2. Although unit No. 1 was not damaged, it was also shut down due to “outages.” In determining whether either of these units should be removed from the utility’s rate base, the Pennsylvania commission, at page 506, listed the following factors as distinguishing unit No. 1 from unit No. 2:

“* * * The length of time which utility plant may be out of service and not be removed from rate base depends upon the nature of the plant, the degree to which the outage can be expected to occur during normal operation of the plant, and the certainty with which resumption of service can be predicted. An example of an outage which will not require a rate base adjustment would be the outage of a generating plant for several weeks for unscheduled maintenance. A generating plant by its nature cannot be operating continuously without periodic maintenance. Outages of several days to several months duration, whether scheduled or forced, are typical of the normal operation of such plant; and the resumption of service is reasonably certain.”

Herein, appellee was confronted with a plant in its first full year of operation, described as having “typical startup problems” for a nuclear generating unit. Evidence exists to support appellee’s findings that the electricity produced at Davis-Besse created substantial fuel cost savings and helped to alleviate the crisis caused by a national coal strike in 1978. In order to ensure that the additional costs of purchased power, necessitated by the periodic outages at Davis-Besse, would not be built into the rate structure, the commission normalized test year expenses to exclude those costs.

As this court noted in Consumers’ Counsel v. Pub. Util. Comm. (1979), 58 Ohio St. 2d 449, 453, “[wjhether property is used and useful in providing service to the customers of a utility is a question which of necessity must be resolved on the basis of a case-by-case analysis.” We cannot say that appellee’s determination that Davis-Besse was used and useful is manifestly against the weight of the evidence or clearly unsupported by the record.

[65]*65However, in affirming this finding, we do not wish to leave the impression that even a minute quantity of electricity production will qualify a generating plant for inclusion in the rate base. As appellee itself noted in its instant order, “[i]t is conceivable* * *that a generating plant could be out of service for such an extended period of time that the commission might properly conclude that it was no longer used and useful, and should therefore be excluded from the utility’s rate base.”

Alternatively, appellants contend that Davis-Besse should have been excluded from the rate base because it constituted excess generating capacity. The commission is required by R. C. 4905.70 to “establish criteria for the investigation, identification, and remedy of the existence of any excess capacity in the generating systems of electric light companies.” In attempting to effectuate this mandate, appellee’s staff initially took the actual peak load of CEI and added a fixed 20 percent reserve margin. This sum was then subtracted from the calculated total capability of the CEI system. The resultant excess was greater than the capacity of CEI’s share of the DavisBesse unit. Thus appellants assert that R. C. 4905.70 compels the exclusion of Davis-Besse from the rate base as a remedy for excess capacity. We cannot agree.

As the commission points out, the staff calculations did not take into account the effect of the company’s partial, seasonal and conditional deratings on the maximum system capacity.2 Since utilities must anticipate load growth years in advance to maintain adequate capacity to ensure reliable service, it is unrealistic to expect a utility to have only the precise amount of capacity needed at any given time. The commission recognized this fact in a previous order, In re Application of Dayton Power & Light Co. (July 22, 1977), case No. 76-823-EL-AIR, where it noted, at pages 6-7 of its opinion, that “[w]hen capacity greater then [sic] that necessary to meet peak needs plus an adequate reserve* * *is shown to exist, attention must be given to the net effect of such capacity upon the company’s total costs before it can be judged whether a [66]*66facility is useful.” There, the commission conducted a cost-benefit analysis to determine “whether or not [a generating unit’s] availability will reduce the company’s overall cost of service and thereby reduce the rates paid by the electric consumer. If such a unit does serve to reduce the net cost of providing electric service, the property should be considered useful absent other overriding or compelling considerations.” Id., at page 6.

It appears to this court that such an analysis is not only appropriate to a determination of excess capacity, but would also be helpful in quantifying a point at which a generating unit can no longer be considered used and useful because of inadequate production performance. The cost-benefit analysis conducted herein showed that the availability of the Davis-Besse plant did result in substantial savings to CEI’s customers. Thus, appellee’s inclusion of that nuclear generating unit in CEI’s rate base is affirmed.

II.

Except for the preceding question of whether the DavisBesse plant was properly includable in the rate base, the city and Senior Citizens present distinctly different propositions of law. We will first consider those raised by the city in case No. 79-1158.

A.

Appellant first contests the commission’s inclusion of a $3.05 customer charge in CEI’s residential rate schedules. This flat monthly charge, which was first proposed by the commission staff, was designed to reflect the fact that costs are incurred as a result of having customers on line, irrespective of usage considerations.

The city argues that appellee abused its discretion in devising such a charge, citing Cleveland Elec.

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Bluebook (online)
406 N.E.2d 1370, 63 Ohio St. 2d 62, 17 Ohio Op. 3d 37, 1980 Ohio LEXIS 773, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-cleveland-v-public-utilities-commission-ohio-1980.