Ohio Edison Co. v. Public Utilities Commission

589 N.E.2d 1292, 63 Ohio St. 3d 555, 1992 Ohio LEXIS 838
CourtOhio Supreme Court
DecidedMay 6, 1992
DocketNo. 90-2406
StatusPublished
Cited by32 cases

This text of 589 N.E.2d 1292 (Ohio Edison Co. 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
Ohio Edison Co. v. Public Utilities Commission, 589 N.E.2d 1292, 63 Ohio St. 3d 555, 1992 Ohio LEXIS 838 (Ohio 1992).

Opinions

Per Curiam.

Appeals arising from orders of the Public Utilities Commission are subject to the standard of review contained in R.C. 4903.13, which provides in part:

“A final order made by the public utilities commission shall be reversed, vacated, or modified by the supreme court on appeal, if, upon consideration of the record, such court is of the opinion that such order was unlawful or unreasonable.”

In MCI Telecommunications Corp. v. Pub. Util. Comm. (1988), 38 Ohio St.3d 266, 268, 527 N.E.2d 777, 780, we repeated our interpretation of this standard, stating:

“Under the ‘unlawful or unreasonable’ standard specified in R.C. 4903.13, this court will not reverse or modify a PUCO decision as to questions of fact where the record contains sufficient probative evidence to show the PUCO’s determination is not manifestly against the weight of the evidence and is not so clearly unsupported by the record as to show misapprehension, mistake, or willful disregard of duty. Dayton Power & Light Co. v. Pub. Util. Comm. (1983), 4 Ohio St.3d 91, 4 OBR 341, 447 N.E.2d 733; Columbus v. Pub. Util. Comm. (1979), 58 Ohio St.2d 103, 12 O.O.3d 112, 388 N.E.2d 1237. * * * ”

We have further recognized that this court has complete and independent power of review as to questions of law, and that legal issues are to be given more intense examination than factual questions. Consumers’ Counsel v. Pub. Util. Comm. (1983), 4 Ohio St.3d 111, 4 OBR 358, 447 N.E.2d 749; Consumers’ Counsel v. Pub. Util. Comm. (1979), 58 Ohio St.2d 108, 12 O.O.3d 115, 388 N.E.2d 1370. We consider the six errors alleged by Ohio Edison with these standards in mind.

I

As its first proposition of law, Ohio Edison claims that the commission erred in its allocation of deferred costs associated with the Beaver Valley 2 nuclear generating unit. This allocation was necessary to separate costs incurred with respect to retail sales of electricity, which are recoverable from ratepayers in this proceeding (“jurisdictional sales”), from costs incurred with respect to wholesale sales, which are subject to regulation by the Federal Energy Regulatory Commission (“nonjurisdiction sales”). To make this allocation, the level of nonjurisdictional sales to American Municipal Power-Ohio, Inc. (“AMP-Ohio”) had to be ascertained.

In its application, Ohio Edison quantified the level of AMP-Ohio sales at one hundred twenty-five megawatts (“MW”), using six months’ actual and six months’ estimated test-year data. This was the same methodology that the [557]*557company used in developing the numerous other allocation factors in this proceeding. During its rebuttal testimony, the company presented evidence that the level of nonjurisdictional sales to AMP-Ohio had decreased during the test year to thirty MW. The company proposed that the commission make adjustments for this decrease in calculating the Beaver Valley 2 allocator, as well as all other allocation factors in this proceeding. The commission rejected the company’s proposal, finding that, because the thirty MW level was based upon twelve months of actual data, its use would improperly distort the allocation analysis originally submitted by the company based on six months’ actual and six months’ estimated data.

The company argues that the decreased level of AMP-Ohio sales should have been adopted in this proceeding because it is more representative of test-year operations. Franklin Cty. Welfare Rights Org. v. Pub. Util. Comm. (1978), 55 Ohio St.2d 1, 6, 9 O.O.3d 1, 3, 377 N.E.2d 990, 994. Although there is support in the record for the company’s position, the record also supports the commission’s finding that the adoption of the decreased sales level would improperly distort the allocation analysis submitted by the company. This court has traditionally deferred to the commission’s judgment and expertise in instances where the record supports each of two opposing positions. AT & T Communications of Ohio, Inc. v. Pub. Util. Comm. (1990), 51 Ohio St.3d 150, 555 N.E.2d 288; Dayton Power & Light Co. v. Pub. Util. Comm. (1962), 174 Ohio St. 160, 21 O.O.2d 427, 187 N.E.2d 150. Being supported by the record, the commission’s determination to preserve the integrity of the allocation methodology was well within its lawful discretion. In keeping with precedent, we will not interfere with that discretion by substituting our judgment for that of the commission. Accordingly, the company’s first proposition of law is overruled.

II

At issue under Ohio Edison’s second proposition of law is whether the commission was required to include plant in the rate base which the company had neither included in its application, nor otherwise made available for timely investigation by the commission’s staff. At the time Ohio Edison filed its application, this property was classified on the company’s books as construction work in progress (“CWIP”). Because the company based its rate filing on the accounts of its property in service, it did not include the property at issue in the application, and the commission’s staff did not investigate to verify whether the property was used and useful in providing service to ratepayers. R.C. 4909.15(A)(1) and 4909.19.

[558]*558At the hearing, Ohio Edison presented testimony that the property was actually completed and in service as of date certain, and urged the commission to include it in the rate base. The company explained that the property had not been recorded in an in-service account at the time the application was filed (and thus was not included in the company’s initial rate-base calculation) due to the time it takes to transfer completed construction from the CWIP account to an appropriate in-service account. The commission refused to include the property in the rate base because the company did not provide the commission’s staff ample time to independently verify the plant’s used and useful nature.1

The company argues that the staff’s independent verification of this plant is not required, because the property’s used and useful nature can be established by its witness’s testimony and by the staff’s general finding, in its report of investigation, that the company’s continuing property records are reliable. In Columbus v. Pub. Util. Comm. (1979), 58 Ohio St.2d 103, 12 O.O.3d 112, 388 N.E.2d 1237, we upheld the commission’s inclusion of property in a utility’s rate base under similar reasoning. However, Columbus is distinguishable from this case because, here, the company attempted to supplement its application with additional property after the commission had issued its Staff Report of Investigation.

R.C.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re Application of E. Ohio Gas Co.
2023 Ohio 3289 (Ohio Supreme Court, 2023)
In re Application of Suburban Natural Gas Co. (Slip Opinion)
2021 Ohio 3224 (Ohio Supreme Court, 2021)
In re Application of Columbus S. Power Co.
2012 Ohio 5690 (Ohio Supreme Court, 2012)
Waste Management of Ohio, Inc. v. Board of Health
825 N.E.2d 660 (Ohio Court of Appeals, 2005)
Constellation NewEnergy, Inc. v. Public Utilities Commission
104 Ohio St. 3d 530 (Ohio Supreme Court, 2004)
Stephens v. Public Utilities Commission
806 N.E.2d 527 (Ohio Supreme Court, 2004)
Westside Cellular, Inc. v. Public Utilities Commission
2002 Ohio 7119 (Ohio Supreme Court, 2002)
AK Steel Corp. v. Pub. Util. Comm.
2002 Ohio 1735 (Ohio Supreme Court, 2002)
AK Steel Corp. v. Public Utilities Commission
95 Ohio St. 3d 81 (Ohio Supreme Court, 2002)
Cincinnati Bell Tel. Co. v. Pub. Util. Comm.
2001 Ohio 134 (Ohio Supreme Court, 2001)
Cincinnati Bell Telephone Co. v. Public Utilities Commission
92 Ohio St. 3d 177 (Ohio Supreme Court, 2001)
MCI Telecommunications Corp. v. Pub. Util. Comm.
2000 Ohio 423 (Ohio Supreme Court, 2000)
AT&T Communications of Ohio, Inc. v. Pub. Util. Comm.
2000 Ohio 422 (Ohio Supreme Court, 2000)
AT&T Communications of Ohio, Inc. v. Public Utilities Commission
88 Ohio St. 3d 549 (Ohio Supreme Court, 2000)
Licking County Citizens for a Safe Environment v. Schregardus
737 N.E.2d 583 (Ohio Court of Appeals, 2000)
Parma v. Pub. Util. Comm.
1999 Ohio 141 (Ohio Supreme Court, 1999)
City of Parma v. Public Utilities Commission
86 Ohio St. 3d 144 (Ohio Supreme Court, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
589 N.E.2d 1292, 63 Ohio St. 3d 555, 1992 Ohio LEXIS 838, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ohio-edison-co-v-public-utilities-commission-ohio-1992.