Opinion
Nos. 82-716 and 82-918
Decided March 16, 1983.
Public Utilities Commission — Recovery of fuel acquisition costs — Unplanned shutdown of nuclear power plant — Fuel costs allowable, when.
APPEALS from the Public Utilities Commission of Ohio.
Pursuant to R.C. 4905.301, the Public Utilities Commission ("commission") held hearings to review the recovery of fuel acquisition costs by Toledo Edison Company ("TECO") and Cleveland Electric Illuminating Company ("CEI"). At the conclusion of the hearings, the commission entered orders permitting TECO and CEI to recover those costs. These are appeals from those orders.
Case No. 82-716 is an appeal from the commission order in 81-306-EL-EFC. Case No. 82-918 is an appeal from the commission order in 81-309-EL-EFC. Because the two cases arise out of the same incident, they have been consolidated here for final disposition.
In each case, the genesis of the controversy was the unscheduled shutdown of the Davis-Besse nuclear power plant on June 24, 1981. On that day, Davis-Besse employees were performing a test on one of two control rod circuit breakers. The two circuit breakers provide the sole sources of electricity to the control rods in the nuclear reactor. To perform the test, the circuit breaker being tested had to be tripped, leaving only one circuit breaker to assure the continued supply of electricity to the control rods.
Davis-Besse is jointly owned by TECO and CEI. TECO operates it.
This test is mandated by the Nuclear Regulatory Commission.
During this test a workman was constructing a scaffolding in the vicinity of the operative circuit breaker box. In some manner, he came in contact with the cabinet housing this latter circuit breaker. As the circuit breakers are subject to vibration, this contact caused the operative circuit breaker to trip. This, in turn, resulted in the unplanned shutdown of Davis-Besse.
The workman was an employee of Catalytic Engineering, Inc., an independent contractor.
Although the shutdown lasted from June 24, 1981, until July 19, 1981, it is unclear from the record what portion of the shutdown is attributable to the incident involving the circuit breaker. The commission made no finding in this respect. However, it does appear that a minimal amount of time is imputable to it since the plant was scheduled for a planned shutdown for maintenance shortly afterwards.
During the shutdown, TECO and CEI bought replacement electricity at a premium above what it would have cost to generate it at Davis-Besse. It is the premium paid for this replacement energy which was at issue before the commission. The commission ruled that TECO was reasonable and prudent in its actions immediately before and after the shutdown. Consequently, the commission allowed the inclusion of the energy replacement cost in the company's rate bases.
In case No. 81-309-EL-EFC, the CEI case, the parties stipulated to the record in the TECO case. So, the commission based its decision on that of the TECO case.
This cause is now before the court upon appeals as of right.
Mr. William A. Spratley, consumers' counsel, Mr. Bruce J. Weston and Mr. Michael L. Haase, for appellant Office of Consumers' Counsel.
Mr. Anthony G. Pizza, prosecuting attorney, Mr. Nick Batt and Ms. Mary Trimboli, for intervening appellant Lucas County Board of Commissioners in case No. 82-716.
Mr. William J. Brown, attorney general, Mr. Marvin I. Resnik and Ms. Phyllis J. Culp, for appellee Public Utilities Commission of Ohio.
Messrs. Fuller Henry, Mr. Paul M. Smart and Mr. Fred J. Lange, Jr., for intervening appellee Toledo Edison Co. in case No. 82-716.
Messrs. Squire, Sanders Dempsey, Mr. James H. Woodring, Mr. Alan D. Wright and Mr. Craig I. Smith, for intervening appellee Cleveland Electric Illuminating Co. in case No. 82-918.
R.C. 4905.301 mandates a semiannual hearing to review the fuel component of public utility rate schedules. The procedure for these hearings is set forth in R.C. 4909.191. Pertinent to this appeal is R.C. 4909.191(C) which reads, in part:
"The electric light company shall demonstrate at the hearing on its fuel component that its acquisition and delivery costs were fair, just, and reasonable. * * *"
The appellants argue that absent a showing that a utility acts in a prudent, reasonable manner to avoid a plant shutdown, the utility may not recover fuel acquisition costs. Further, appellants argue that the record demonstrates that TECO and CEI did not act in such a manner.
First, appellants point out that the companies had experienced a similar problem previously. At an earlier time, a vibration caused the one operative circuit breaker to trip. Thus, appellants assert that TECO was imprudent in allowing unsupervised construction work in the vicinity of the circuit breaker while the other was inoperative, particularly given the circuit breaker's sensitivity to vibration.
That incident did not cause a shutdown since Davis-Besse was not operating at the time.
Second, appellants argue that the circuit breaker was not sufficiently marked to inform those working near it that it was sensitive to vibration. The sign on the cabinet read, "Equipment subject to mech. shock." Appellants assert that it should have had a simpler, more direct message, such as, "Do Not Touch."
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:
"* * * Upon 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."
The commission's decisions here are not so unsupported by the record as to demonstrate "misapprehension, mistake or a willful disregard of duty."
Consequently, the orders of the Public Utilities Commission are affirmed.
Orders affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, MAHONEY, HOLMES, C. BROWN and PUTMAN, JJ., concur.
MAHONEY, J., of the Ninth Appellate District, sitting for LOCHER, J.
PUTMAN, J., of the Fifth Appellate District, sitting by assignment.