State ex rel. Utilities Commission v. Virginia Electric & Power Co.

269 S.E.2d 657, 48 N.C. App. 453, 1980 N.C. App. LEXIS 3283
CourtCourt of Appeals of North Carolina
DecidedAugust 29, 1980
DocketNo. 8010UC29
StatusPublished
Cited by11 cases

This text of 269 S.E.2d 657 (State ex rel. Utilities Commission v. Virginia Electric & Power Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Utilities Commission v. Virginia Electric & Power Co., 269 S.E.2d 657, 48 N.C. App. 453, 1980 N.C. App. LEXIS 3283 (N.C. Ct. App. 1980).

Opinion

PARKER, Judge.

In its 31 July 1979 order entered in combined Dockets E-22, Sub 236 (the investigatory proceeding initiated by the Commission) and Dockets E-22, Sub 239 through 244, inclusive (the proceedings brought by Vepco under G.S. 62-134(e) to adjust its rates and charges solely upon the increased cost of fuel used in the generation of electric power), the Commission expressly found that the allocation formulae and procedures used by the Commission in Vepco’s general rate case proceedings had correctly allocated Vepco’s generation plant and system operating costs between its wholesale and retail service, respectively, in Virginia, West Virginia, and North Carolina. The Commission also found that Vepco’s comparatively high rates for electric service in North Carolina were not the result of costs to meet air pollution standards for Vepco’s generating plant in the Washington, D.C., air quality area, or of unreasonable load factors, or of unreasonable transmission and line losses, or of inappropriate allocation of losses to Vepco’s North Carolina retail operation, or of excessive costs of constructing generating plants. To these findings, all of which relate to matters which were the subject of investigation in the investigatory proceeding, Docket E-22, Sub 236, and all of which were favorable to Vepco, appellant has, of course, taken no exception.

By this appeal, appellant challenges the Commission’s finding that “Vepco’s fuel expenses are excessive and should be adjusted in these and future proceedings to remove unreasonable costs associated with poor system fossil-fired heat rate and low availability’’ (emphasis added) of certain of its generating plants. Appellant contends that the Commission committed error by taking into account in proceedings brought under G.S. 62-13Jf(e), the factors of “heat rate” and “low availability” of plant as the basis for its determination that appellant’s fuel expenses were excessive and should be adjusted. We agree with appellant’s contention and accordingly reverse the Commission’s orders.

At the outset, we note that the Public Staff initially contended before the Commission that Vepco’s fuel expenses were excessive because: (1) Vepco had paid excessive prices for coal [458]*458under long-term contracts with Island Creek Coal Company, Laurel Run Mining Company (a Vepco subsidiary), and Appolo Fuels, Inc.; (2) Vepco had not reconverted its oil-fired units to coal as rapidly as it should have; and (.3) Vepco was experiencing a poor heat rate and poor availability of its large low-cost coal-fired generating units. As to the first factor, the Commission expressly found as a fact “[t]hat the prices paid for coal under the Island Creek, Laurel Run, and Appolo Fuel contracts for the test periods under consideration herein should not be adjusted.” Further, in discussing this finding the Commission said:

In summary, the Commission concludes that Vepco’s long-term coal contracts are reasonable. An examination of Vepco’s overall coal procurement activities demonstrates that Vepco’s coal purchases compare favorably with those of Duke and CP&L, the utilities chosen by the Public Staff for its comparison. Further, that although the prices paid for coal under the Island Creek, Laurel Run, and Appolo Fuels contracts for the test periods under consideration herein are higher than the Commission would prefer to see, they are not excessive when viewed in the total context of the evidence of record in this proceeding.

As to the second factor, the Commission expressly found “[t]hat since early 1977, Vepco has known with certainty that significant net savings would result from the reconversion to coal-fired generation” of certain of its generating units and “[tjhat, upon passage of the Clean Air Act Amendment in November 1977, timely and responsible action by Vepco’s management would have resulted in conversion to coal-fired generation of certain of its oil-fired units ... by no later than January 1,1981.” (Emphasis added.) On these findings, the Commission expressly refused to consider any tardiness in Vepco’s reconverting its oil-fired units to coal as a factor in any of the present fuel adjustment proceedings, limiting its ruling in this regard to a warning that it would do so effective 1 January 1981.

It is thus apparent that the sole basis for the Commission’s finding in the present proceedings that Vepco’s fuel expenses were too high and should be adjusted downward was its consid[459]*459eration of the factors of poor heat rate and low plant availability, the factors which Vepco contends, and which we agree, were not properly before the Commission for consideration in proceedings brought under G.S. 62-134(e).

By enacting G.S. 62-134(e) in 1975, the General Assembly terminated effective 1 September 1975 the use of a fossil-fuel adjustment clause as a rider to an electric utility company’s regular rate schedule1 and replaced it with a statutorily prescribed procedure. Insofar as pertinent to the present proceedings, G.S. 62-134(e) provides:

Change of rates; notice; suspension and investigation.
(e) Notwithstanding the provisions of this Article, upon application by any public utility for permission and authority to increase its rates and charges based solely upon the increased cost of fuel used in the generation or production of electric power, the Commission shall suspend such proposed increase for a period not to exceed 90 days beyond the date of filing of such application to increase rates. Upon motion of the Commission or application of any person having an interest in said rate, the Commission shall set for hearing any request for decrease in rates or charges based solely upon a decrease in the cost of fuel. The Commission shall promptly investigate applications filed pursuant to provisions of this subsection and shall hold a public hearing within 30 days of the date of the filing of the application to consider such application, and shall base its order upon the record adduced at the hearing, such record to include all pertinent information available to the Commission at the time of hearing. The order responsive to an application shall be issued promptly by the Commission but in no event later than 90 days from the date of filing of such application. A proceeding under this subsection shall not be considered a general rate case ...

[460]*460By the clear and express language of this statute, the legislature has provided a procedure by which a public utility may apply to the Utilities Commission for authority to increase its rates and charges based solely upon the increased cost of fuel used in the generation of electric power and by which the Commission, on its own motion or upon request of an interested rate payor, may consider and determine a decrease in rates or charges based solely upon a decrease in the cost of fuel. The procedure provided is an expedited one “and shall not be considered a general rate case.”2 Insofar as the Commission in the present cases considered and passed upon the cost of fuel used by Vepco in the generation of electric power during the periods in question by considering the reasonableness of the prices paid by Vepco for such fuel, it acted within the scope of the statutorily prescribed procedure. Insofar as the Commission considered and based its determination upon such factors as Vepco’s heat rate and plant availability in these proceedings, it went beyond the scope of the procedure authorized by G.S.

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Bluebook (online)
269 S.E.2d 657, 48 N.C. App. 453, 1980 N.C. App. LEXIS 3283, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-utilities-commission-v-virginia-electric-power-co-ncctapp-1980.