Office of Consumers' Counsel v. Public Utilities Commission
Opinions
R.C. 4905.301 mandates a semiannual hearing to review the fuel component of public utility rate schedules. R.C. 4909.191 (C)5 requires [472]*472the utility to demonstrate at the hearing that its acquisition costs6 and delivery costs7 were fair, just and reasonable. Conversely, R.C. 4909.191 (D)8 requires the commission to readjust its rates when the commission finds that a utility has engaged in imprudent fuel procurement practices.
The appellant argues that the commission’s order, substituting the “modified 115% method” for the “125% rule,” was not based upon a demonstration that Ohio Edison’s acquisition costs were fair, just and reasonable, but, rather, that these costs result from imprudent and unreasonable acquisition policies. The appellant does not argue that the commission was without jurisdiction to enter the present order. Rather, appellant argues that to do so was against the manifest weight of the evidence before the commission. We disagree.
In the recent case of Consumers’ Counsel v. Pub. Util. Comm. (1983), 4 Ohio St. 3d 35, we discussed our role in reviewing the commission’s factual determinations made in R.C. 4905.301 proceedings. At pages 36-37, we said: “This court may disturb factual conclusions only when they are unreasonable or unlawful. R.C. 4903.13. In Consumers’ Counsel v. Pub. Util. Comm. (1979), 58 Ohio St. 2d 449, 453 [12 O.O.3d 378], the court said:
« <* * * pjp0n review of * * * factual conclusions, a finding of the commission will not be reversed unless it appears from the record that it is manifestly against the weight of the evidence or is so clearly unsupported by the record as to show misapprehension, mistake, or a willful disregard of duty.’ ” See, also, Cleveland Electric Illuminating Co. v. Pub. Util. Comm. (1975), 42 Ohio St. 2d 403 [71 O.O.2d 393],
Here, the commission’s factual conclusion is not “so clearly unsupported by the record as to show misapprehension, mistake, or a willful disregard of duty.”
[473]*473The commission based its decision to replace the “125% rule” with the “modified 115% method” on staff testimony.9 The staff recommended the “modified 115% method” should be adopted because circumstances had changed since the adoption of the “125% rule.” First, less Quarto coal was being used at the Mansfield units.10 Therefore, Quarto and other coal would be used at the Mansfield units. Because other than Quarto coal is used at Mansfield, the “modified 115% method” will provide Ohio Edison and the other CAPCO companies with an incentive to secure inexpensive coal so that actual Quarto costs can be recovered. Second, the staff testified, and the commission held, that the further accumulation of deferred costs would overly burden future ratepayers. Lastly, it was recognized that the ability of Ohio Edison to enter capital markets was becoming impaired as a result of the increasing deferred costs it was carrying.
Based on these factors and that the commission has had an extensive history of overseeing the Quarto project, we are unwilling to say that its deci-. sion was unreasonable.
In the alternative, appellant argues that the commission’s order must be reversed because it violates R.C. 4905.01 (F). In pertinent part, R.C. 4905.01 (F) provides:
“* * * In the case of a coal supply owned or controlled in whole or in part by the company such term shall not exceed a price that is, in the judgment of the public utilities commission, reasonable when compared to the average cost per million British thermal units of similar quality coal purchased from all independent like mining operations under similar term contracts during the same period.”
The appellant argues that because of the relationship between the development of the Quarto mines and CAPCO, Quarto coal was controlled, in part, by Ohio Edison. Hence, the commission erred in allowing Ohio Edison to recover more than the cost of similar, i.e., average, market price.
We disagree. As the commission stated in its opinion, even assuming CAPCO controlled Quarto, in part, R.C. 4905.01 (F) was not necessarily violated. In this case, we agree with the commission’s analysis of R.C. 4905.01 (F), that:
“* * * Section 4905.01(F) does not reduce the comparison to a simple dollar comparison but rather includes other considerations such as long-term trends, long-term dependability, and long-term cost and supply interests. These matters have all been considered in the Commission’s determination to [474]*474permit the CAPCO companies to pass through certain portions of Quarto coal costs and accumulated deferrals.”
Based on the foregoing, we affirm the order of the commission.
Order affirmed.
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453 N.E.2d 711 (Office of Consumers' Counsel v. Public Utilities Commission) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.