Office of Consumers' Counsel v. Public Utilities Commission

423 N.E.2d 1082, 67 Ohio St. 2d 303, 21 Ohio Op. 3d 191, 1981 Ohio LEXIS 581
Ohio Supreme Court·Decided July 22, 1981·No. Nos. 80-639 and 80-643·Published·Cited by 8 cases

Opinions

Per Curiam.

The three critical issues in this case are whether the commission properly: (1) included C.G. & E.’s Zimmer Nuclear Unit No. 1 and its nuclear fuel core as CWIP; (2) calculated C.G. & E.’s tax accruals which were used as an offset to the allowance made for working capital; and (3) determined C.G. & E’s cost of common equity for rate of return purposes.

In resolving these issues, we are mindful of the fact that, pursuant to R. C. 4903.13, this court will not reverse an order of the commission unless it appears from the record that such order is unlawful or unreasonable. It should also be noted that this court will not disturb the findings and order of the commission unless such findings and order are manifestly against the weight of the evidence and are so clearly unsupported by the record as to show misapprehension or mistake or willful disregard of duty. Ohio Edison Co. v. Pub. Util. Comm. (1981), 67 Ohio St. 2d 230; C & SOE v. Pub. Util. Comm. (1979), 58 Ohio St. 2d 120; Cleveland Elec. Illuminating Co. v. Pub. Util. Comm. (1975), 42 Ohio St. 2d 403, paragraph eight of the syllabus, certiorari denied, 423 U. S. 986.

With regard to the CWIP issues, our analysis begins with R. C. 4909.15, which provides, in pertinent part:

“(A) The public utilities commission, when fixing and determining just and reasonable rates, fares, tolls, rentals, and charges shall determine:

“(1) The valuation as of the date certain of the property of the public utility used and useful in rendering the public utility service for which rates are to be fixed and determined. The valuation so determined shall be the total value as set forth in division (J) of section 4909.05 of the Revised Code, and a reasonable allowance for materials and supplies and cash working capital, as determined by the public utilities commission. The commission may, in its discretion, permit a rea[306]*306sonable allowance for construction work in progress but, in no event, may any allowance for construction work in progress be made by the commission until it has determined, after a physical inspection, that the particular construction project is at least seventy-five percent complete. ” (Emphasis added.)

The only other limitation placed upon the commission’s discretion in calculating a CWIP allowance is R. C. 4909.15 (E), which reads, in pertinent part:

“In no event shall an allowance for construction work in progress under division (A)(1) of this section exceed twenty per cent of the total valuation as stated in such division, not including such allowance.”

Appellants challenge the CWIP allowance on several grounds which we will now review seriatim.

Appellant Consumers’ Counsel initially contends that the commission cannot decide whether a particular construction project is 75 percent complete, unless the commissioners venture out into the field and perform the actual physical inspection themselves. This we categorically reject. Neither the statute nor prior cases from this court require such an inspection. What with the veritable plethora of ongoing CWIP projects in Ohio—indeed, there were at least 106 CWIP investigations performed by the commission staff in this proceeding alone—such a burden would transform the commissioners into a band of nomads with little or no time to devote to their general regulatory responsibilities. Appellant’s argument on this point does not make good sense; it definitely would not make good law. We find that the commissioners are entitled to rely on the reports and testimony of their own staff and other experts in assessing the extent to which a particular construction project is complete.

Appellant Consumers’ Counsel next challenges the commission’s determination that Zimmer Nuclear Unit No. 1 is 75 percent complete. More specifically, appellant contends that the commission improperly combined the nuclear fuel core with the nuclear plant itself in order to arrive at the 75 percent completion figure.

The record, however, does not support appellant’s assertion on this point. The record, rather, indicates that the commission’s staff made a determination, based on a physical ex-[307]*307animation of both the plant and the fuel core, that both the plant and the fuel core, whether considered individually or collectively, were well in excess of 75 percent complete. The commission, after hearing testimony relating to other methodologies of calculating percentage completion of a construction project, such as the elapsed time test, the dollars obligated test and the earned man hours ratio test, see Consumers’ Counsel v. Pub. Util. Comm. (1981), 66 Ohio St. 2d 162, adopted the conclusion of its staff that both the Zimmer facility and fuel core did, in fact, meet the 75 percent completion test. We find that this conclusion is amply supported by the record.

Appellant further submits that, assuming arguendo the correctness of the commission’s conclusion that the Zimmer plant was 75 percent complete, subsequent events such as design changes and a “defacto moratorium” on the issuance of necessary licenses by the United States Nuclear Regulatory Commission (NRC), both arising out of the nuclear accidents at Three Mile Island, have rendered this 75 percent complete determination incorrect. We note, however, that, as of the date certain, March 31, 1979, and the commission’s hearings, from October through December of 1979, the most reliable evidence available at that time supports the conclusion that the facility would be brought on-line within the projected time frame, thus legitimatizing the 75 percent complete determination. In any event, we also observe, parenthetically, that the NRC issued an initial license for the Tennessee Valley Authority’s Sequoyah Unit No. 1 on September 16,1980, thus demonstrating that the alleged moratorium never materialized.

Appellant additionally contends that the commission erred by including the nuclear fuel core as CWIP. In support of this argument, appellant (1) analogizes the nuclear fuel core to more conventional fossil fuels and (2) points to the accounting classification which C.G. & E. maintains for the core.

There was much conflicting testimony on the includibility of the nuclear fuel core in the CWIP allowance. Much of this testimony demonstrated the significant substantive differences between nuclear fuel and fossil fuel, in terms of consumption and potential renewability. After reviewing this testimony, we conclude that the commission properly exercised its discretion in including the nuclear fuel core in the [308]*308CWIP allowance. In so doing, we reinforce our ruling in Cleveland Elec. Illuminating Co. v. Pub. Util. Comm., supra, paragraph five of the syllabus, that the commission, in exercising its discretion, is not constrained by the accounting practices and policies employed by a utility.

Appellants’ final challenge to the commission’s CWIP determination pertains to the amount attributed to the rate base. Pursuant to the aforementioned limitation of R. C. 4909.15(E), the commission included $122,726,000 in the rate base. In effect, the commission included in the rate base 50 percent of the total amount in the CWIP allowance on the theory that the facility would be operational for one-half of the time that the new rates would be in effect.

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Office of Consumers' Counsel v. Public Utilities Commission, 423 N.E.2d 1082, 67 Ohio St. 2d 303, 21 Ohio Op. 3d 191, 1981 Ohio LEXIS 581 (Ohio 1981).

423 N.E.2d 1082 (Office of Consumers' Counsel v. Public Utilities Commission) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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