National Fuel Gas Distribution Corp. v. Pennsylvania Public Utility Commission

473 A.2d 1109, 81 Pa. Commw. 148, 1984 Pa. Commw. LEXIS 1298
CourtCommonwealth Court of Pennsylvania
DecidedMarch 26, 1984
DocketAppeals, Nos. 2758 C.D. 1982 and 3348 C.D. 1982
StatusPublished
Cited by10 cases

This text of 473 A.2d 1109 (National Fuel Gas Distribution Corp. v. Pennsylvania Public Utility Commission) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Fuel Gas Distribution Corp. v. Pennsylvania Public Utility Commission, 473 A.2d 1109, 81 Pa. Commw. 148, 1984 Pa. Commw. LEXIS 1298 (Pa. Ct. App. 1984).

Opinion

Opinion by

Judge Rogers,

In these consolidated cases, the National Fuel Gras Distribution Corporation (NFGr) seeks review of orders of the Pennsylvania Public Utility Commission (Commission)1 the joint effect of which was to require refunds to customers of $3,245,727.00 said to represent “the interest accrued” to NFGr on certain gas cost rate revenues determined by the Commission to have been unlawfully collected. The matters in controversy are the most recent to be born of the decision of the Commission in 1979 and 1980 to investigate and ultimately to disapprove purchases by NFGr of synthetic natural gas (SNGr) pursuant to a ten year contract with Ashland Oil Company, an unregulated petroleum refiner, which produced the SNGr from liquid petroleum feedstocks at Ashland’s Tonawanda, New York refinery. We recently considered a number of questions raised with respect to the Commission’s orders entered August 28,1980 and September 4, 1980 requiring NFGr to refund to its customers $13,886,062 representing costs associated with the disapproved SNGr purchases. National Fuel Gas Distribution Corporation v. Pennsylvania Public Utility Commission, Pa. Commonwealth Ct. , 464 A.2d 546 (1983). We there held that the Commission had failed adequately to describe in its adjudication the legal and factual basis for its refund requirement and we remitted the record to that body for further proceedings.

In the opinion filed in support of our order just described we explored in detail the circumstances which led to NFG contract for a supply of SNGr- and which later led the Commission to condemn the [151]*151maintenance of that supply. No purpose would now be served by repeating that history; it will suffice at this time to note that NFG’s contract with Ashland Oil contains a provision the effect of which is to permit NFG to pay $.50 per MCF2 3as a penalty for gas produced by Ashland Oil under the contract but not taken by NFG for delivery and resale to its customers. In the context of the 1980 orders described above, the Commission held that NFG ought to have invoked the operation as this “take-or-pay” provision as, in 1978 and 1979, the cost of SNG rose to more than $6.00 per MCF, a figure upwards of twice .the then prevailing price of natural gas. As we will shortly discuss at length, the cost to NFG of the gas it supplies to its customers is recovered in the form of gas cost rate (GCR.) charges made a part of each customer’s monthly bill. The gas cost rate charges, in turn, reflect a cost of anticipated gas purchases determined by the utility in accordance with a computational formula first promulgated by the Commission in 1978 and applicable to GCR filings made annually by NFG as one of the Commonwealth’s Class-A gas utilities. Thus, GCR-1, for which each gas utility made application in July, 1978, governed the recovery from customers of the cost of gas supplied during the period from September, 1978 through August, 1979.

On July 31, 1981,® NFG filed with the Commission its calculations applicable to the GCR-4 period to commence on September 1, 1981. Specifically, NFG sought to establish by the filing a gas cost rate of $.2984 per MCF4 based, inter alia, on the utility’s pro[152]*152jected cost of gas from its suppliers (from which Ash-land SNG had been excluded in conformance with the Commission’s order eleven months earlier, but including the $.50 per MCF penalty attendant to a discontinuance of the Ashland source of supply); the amount of projected purchases and sales to customers; and certain overcollections from the GCB-3 period to be refunded to customers together with interest; each of which quantity and cost was incorporated into the computational formula mandated by the Commission in 1978 to yield the gas cost rate. The increase was intended to become effective on September 1, 1981, the first day of GCB-4.

On August 28, 1981, the four members of the Commission as it was then constituted, entertained a motion during the course of a duly convened public meeting attended by representatives of NFG the NFG’s GCB-4, as submitted, be rejected on account of its inclusion of the $.50 per MCF penalty related to SNG not to be purchased from Ashland.5 The Commission members evenly divided in their vote on the question and thus, as is reflected in the Commission’s minutes, the motion failed. Thereafter, the following colloquy took place between Commissioner Cawley, who, with Commissioner Taliaferro, opposed the motion, and Joseph Malatesta, Esquire, then the Commission’s Chief Counsel:

Commissioner Cawley: [T]he potential effects of denying incurred gas costs are catastrophic, I suspect, for all or most of these companies, and I would like you to check the law and make sure that they will go into effect as a result of a tie vote. Otherwise, we’ve got to do something about it quickly.
[153]*153Mr. Malatesta: Commissioner, we addressed this question yesterday in anticipation of the possibility [of a tie vote and] my belief [is] that the kind of system of review anticipated or created by Section 1307 of the [Public Utility] Code, that is, establishing automatic adjustment, means that, basically, the Commission has to act affirmatively to stop automatic adjustment; that, once a system is in place, that was put in place in May of 1978 for this GCR, it takes affirmative votes by the Commission, by a majority of the Commissioners, to put a stop to that process. Otherwise, the filing just goes into effect.
Commissioner Cawley: [I]t is now your opinion that the NFG GCR [-4] will automatically go into effect?
Commission Chairman Shanaman: Although it is questionable.
Mr. Malatesta: It’s not certain. It is an untested opinion, obviously. This matter has never been tested in the courts. The language of the statute is not unambiguous, but my best analysis is that it would go into effect automatically.

On September 1, 1981, NFG began to charge its customers rates calculated with reference to the contested GCR-4 filing. Three weeks later the Consumer Advocate filed with the Commission a complaint docketed to C-812654 in which the Consumer Advocate asked that NFG be ordered “to cease and desist collecting rates pursuant to its currently filed GCR No. 4... ” and averring that:

a) NFG is without legal authority to collect rates pursuant to GCR No. 4 because no valid [154]*154order of the Commission has been issued permitting the tariff rider to become effective.
66 Pa. C. S. §1307(a) and (b).
[and]
B) NFG’s GCR No. 4 is unjust and unreasonable in violation of Section 1301 of the Public Utility Code, 66 Pa. C. S. §1301, because it is designed to collect “take or pay” charges of $.50 per MCF pursuant to a contract with Ashland SNG Corporation [sic].

NFG filed a responsive answer and the matter was assigned to Administrative Law Judge (ALJ) Herbert S. Cohen. An evidentiary hearing was conducted on January 7, 1982, at which time the effect of the Commission’s order entered one week-earlier, on December 30, 1981, was considered.

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Bluebook (online)
473 A.2d 1109, 81 Pa. Commw. 148, 1984 Pa. Commw. LEXIS 1298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-fuel-gas-distribution-corp-v-pennsylvania-public-utility-pacommwct-1984.