57 Ohio St. 2d 78 | Ohio | 1979
As support for reversal of the commission’s order in the first instance, appellant contends that compliance with the 30-day filing deadline is a condition precedent to C&SOE’s continued use of the fuel cost adjustment clause
The purpose of the filing requirement of R. C. 4909.-191(B) is to provide advance opportunity for the parties to analyze information submitted by the utility pertinent to its fuel procurement practices and policies. The filing deadline is designed to facilitate an orderly and prompt hearing, State, ex rel. Jones, v. Farrar, supra, and is not jurisdictional in nature
Appellant contends further that C&SOE passed demand costs through its fuel cost adjustment clause, in violation of R. C. 4905.32, and that the commission’s order, which refused to refund these demand costs to C&SOE customers, is unreasonable and unlawful.
At the outset, a distinction must be recognized between the statutory rate-making process involved in establishing fixed rate schedules, and the statutory procedure govern
In contrast, the fuel cost adjustment provisions of R. C. Chapters 4905 and 4909 represent a statutory plan which authorizes a utility to pass variable fuel costs directly to consumers. Rates are thereby varied without prior approval of the commission, and independently from the formal rate-making process incorporated in R. C. 4909.18 and 4909.19. See R. C. 4905.01(C); Rule 4901:1-11-02(H), Ohio Adm. Code; R. C. 4905.302; Ford Motor Co. v. Pub. Util Comm. ( 1977), 52 Ohio St. 2d 142, 370 N. E. 2d 468. R. C. 4905.301 sets forth a procedure by which, “[n]ot withstanding any other provision of law,” the utilization of the fuel cost adjustment procedure is governed by the commission through an after-the-fact, periodic review of a company’s rate adjustment practices, policies and charges. Therefore, appellant’s proposition that R. C. 4905.32 limits the fuel cost adjustment procedure to prior approved rates is without merit.
We find further that the commission’s refusal t'o refund the demand costs is a valid exercise of its broad authority to promulgate rules designed to foster utility fuel procurement incentives. R. C. 4905.69(C)
Appellant’s argument in this regard is not well taken. In Consumers’ Counsel v. Pub. Util. Comm. (1978), 56 Ohio St. 2d 319, 384 N. E. 2d 245, this court upheld an order of the commission which authorized the inclusion of the entire cost of energy purchased on an economic dispatch basis in the fuel cost adjustment clause. FurtheRmore, the commission has pRéviously determined, in case No. 76-166-EL-FAC, dated August 11, 1976, that Rule 4901:1-11-02(1), formerly Section1 26.02(1) of the commission’s Code of Rules and Regulations, as applied to the demand costs associated'with purchased energy, was not'feasible because “it would'; discourage economic transactions which would
In its final proposition of law, appellant urges that the commission’s determination not to order a refund of .$125,-000 in fuel costs passed through the company’s fuel cost adjustment clause (which was subsequently refunded to C&SOE by the selling utility) was unreasonable and unlawful. The commission, however, refused the refund because! the evidence adduced at the audit hearing demonstrated that C&SOE erroneously neglected to charge $119,000' for 'net energy costs, which it could have passed through’ its: fuel cost adjustment’clause. The commission determined .that the overcharge and the undercharge “results, in’ á. $6,000 difference, which is so minimal that the cost of administering the adjustment could exceed the refund.”
A finding and order of the commission will not be disturbed by this court unless it appears from the record that the commission’s determination is manifestly against the weight of the evidence and so clearly unsupported as to show misapprehension or mistake or willful disregard of duty. Cleveland Elec. Illuminating Co. v. Pub. Util. Comm. (1975), 42 Ohio St. 2d 403, 330 N. E. 2d 1 (paragraph eight of the syllabus); certiorari denied, 423 U. S. 986; Reynoldsburg Trucking, Inc. v. Pub. Util. Comm. (1978), 53 Ohio St. 2d 201, 373 N. E. 2d 1250. Under R. C. 4905.66(F),
The order of the commission is affirmed.
Order affirmed.
R. C. 4909.191(B) provides:
“Each electric light company shall submit thirty days prior to the hearing on its fuel cost adjustment clause all facts, data, and other information pertinent to its fuel procurement practices and policies to the public utilities commission.”
R. C. 4909.191(F) provides:
“Unless otherwise ordered by the public utilities commission, an electric light company that has complied with division (B) of this section may continue to pass through acquisition and delivery costs subject to readjustment or refund.”
We do not reach the issue of whether R. C. 4909.191(F) requires the commission to suspend the fuel adjustment clause of a company in the event the data required by R. C. 4909.191(B) is not filed at any time prior to the scheduled hearing.
R. C. 4905.69(G) authorizes the commission to promulgate a rule that:
Rule 490Í: 1-11-02(I), Ohio Adm. Code, provides:
“‘Eüel ¿O'át attributable to purchased power’ means the1 actual-identifiable1 ftiel"’:c'osts 'attributable to energy purchased^ except for energy purchased, on an .economic dispatch basis for which, the energy charge may be fully included to the extent that at the time the purchase decision is. made the expected .purchase energy cost per kilowatt-hour does not excee’d the expected incremental fuel1 cost per kilowatt-hour for the purchaser's. own generation which could substitute for ■ the purchased power. 1 The. terni ‘economic dispatch’ as applied • herein shall include all- purchases of economy energy, that is, purchases for which the total' energy charge is less than that for the purchaser’s own generation, as a. substitute. for the. purchaser’s own higher cost energy. No' amounts billed as capacity or demand charges may be included as cost of fuel. * * *”
R. C. 4905.66(F) provides:
“(1) Where the public utilities commission determines, under divi
“(2) Where the public utilities commission determines, as a result -of the examination conducted under division (E) of this section, that an inaccuracy exists, the effect of which is. that customers of an electric light company have been undercharged, the commission shall order the company to equitably adjust the rates charged to all its customers;”