BP Products North America, Inc. v. Indiana Office of Utility Consumer Counselor
947 N.E.2d 471
| Ind. Ct. App. | 2011Background
- BP operates the Whiting, Indiana refinery, a large inland facility that processes crude oil and creates its own industrial-use water and uses BP’s private distribution for utilities; it contracts to provide steam, water, electricity, and other services to adjacent entities (U.S. Steel, Marsulex, Ineos, Praxair, City of Whiting) under private arrangements; the Commission ruled BP is a public utility for steam, electricity, water, and wastewater, but not for Marsulex electricity; BP sought to avoid or limit jurisdiction under Indiana law; after remand, the Commission acknowledged BP’s contract with NIPSCO and BP’s lack of assigned service territory; the court concludes BP is not a public utility when serving Marsulex but is when supplying water to the City of Whiting, and reverses part of the order and remands accordingly; the court affirms the Commission’s findings regarding the City of Whiting water contract and reverses regarding BP’s contracts with U.S. Steel, Ineos, Praxair, and Marsulex on jurisdictional grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BP is a public utility under Indiana law. | BP contends it serves private contracts, not the public. | U.S. Steel/Commission argue BP’s provision of steam, electricity, water, and wastewater implicates public utility status. | BP is not a public utility for Marsulex electric service; public utility status affirmed only for water to City of Whiting. |
| Whether BP violated Indiana's Service Area Assignments Act by supplying electricity to Marsulex. | BP argues no violation since it lacks an assigned service area. | NIPSCO consent issues do not change BP’s status. | Commission erred by treating BP as an electricity supplier; BP not an electric public utility under statute. |
Key Cases Cited
- U.S. Steel Corp. v. Northern Ind. Pub. Serv. Co., 482 N.E.2d 501 (Ind. Ct. App. 1985) (public utility status requires public use and public interest, not private use within boundaries)
- Knox Cnty. Rural Elec. Membership Corp. v. PSI Energy, Inc., 663 N.E.2d 182 (Ind. Ct. App. 1996) (private distribution within two utilities' boundaries does not automatically yield public utility status)
- City of Sun Prairie v. Pub. Serv. Comm'n, 154 N.W.2d 360 (Wis. 1967) (landlord distributing utilities privately not a public utility; public use must be to the public at large)
- Drexelbrook Assocs. v. Pa. Pub. Util. Comm'n, 212 A.2d 237 (Pa. 1965) (private development’s service to tenants may be private if not open to the public at large)
- Borough of Ambridge v. Pub. Serv. Comm'n, 165 A.47 (Pa. Super. Ct. 1933) (service to tenants can be private, not public, depending on openness to the public)