Opinion
No. 79-1622
Decided June 25, 1980.
Public Utilities Commission — Transactions between public utilities — R.C. 4905.48 — Finding of commission that approval not required — Not unreasonable or unlawful, when — R.C. 4905.16.
APPEAL from the Public Utilities Commission.
In December 1975, a complaint was filed with the Public Utilities Commission by Evelyn Stebbins and the Coalition for Safe Electric Power (appellants) against Cleveland Electric Illuminating Company, Toledo Edison Company, and Ohio Edison Company (the utilities) alleging that the utilities had entered into contracts providing for the joint construction, operation, and ownership of six nuclear generating plants without commission approval in violation of R.C. 4905.48. In April of 1976, the commission dismissed the complaint without a hearing finding that no reasonable grounds for complaint had been stated.
Upon the commission's denial of applications for rehearing, the appellants appealed to this court. In Coalition for Safe Electric Power v. Pub. Util. Comm. (1977), 49 Ohio St.2d 207, this court found that the order of the commission had an insufficient evidentiary foundation. We, therefore, reversed the order of the commission and remanded for a hearing on the merits.
The commission then required the utilities to file copies of all contracts jointly executed by them relative to the construction, ownership, or operation of the subject nuclear power plants. The commission through an attorney examiner and after proper notice held a hearing which eventually culminated in an opinion and order denying appellants' request for relief.
The commission stated that the evidence established that the utilities, parties herein, and two Pennsylvania utilities entered into contracts providing for the planning, ownership, and construction of six nuclear generating plants, without prior commission approval. However, the evidence further established that the utilities did not enter into contracts providing for the joint operation of these facilities. There was no evidence to indicate that the Ohio utilities did business in the same locality within this state or that they had lines which intersected or paralleled each other, within the meaning of R.C. 4905.48, such that commission approval would have to be obtained for these contracts.
The cause is now before this court upon the record below, the briefs of the parties, and oral argument of appellees, appellants having waived oral argument.
Messrs. Oberholtzer, Filous Chase and Mr. Dale H. Chase, for appellant Coalition for Safe Electric Power.
Ms. Evelyn Stebbins, pro se. Mr. William J. Brown, attorney general, Mr. Marvin I. Resnik and Ms. Jane L. Miller, for appellee Public Utilities Commission.
Messrs. Squire, Sanders Dempsey, Mr. Alan D. Wright, Mr. Craig I. Smith, Mr. Alan P. Buchmann and Mr. Kevin T. Duffy, for intervening appellee Cleveland Electric Illuminating Co.
Messrs. Fuller, Henry, Hodge Snyder and Mr. Paul M. Smart, for intervening appellee Toledo Edison Co.
Mr. Thomas A. Kayuha, for intervening appellee Ohio Edison Co.
The sole issue presented for decision is whether R.C. 4905.48 requires the utilities herein to obtain the consent and approval of the commission prior to entering into the subject agreements. R.C. 4905.48, as pertinent herein, provides that:
"With consent and approval of the public utilities commission:
"(A) Any two or more public utilities furnishing a like service or product and doing business in the same municipal corporation or locality within this state, or any two or more public utilities whose lines intersect or parallel each other within this state, may enter into contracts with each other that will enable them to operate their lines or plants in connection with each other."
R.C. 4905.48 provides further that the commission shall give its approval and "***make such order as it deems proper and the circumstances require***" if it is satisfied that "***the public will thereby be furnished adequate service for a reasonable and just rate, rental, toll, or charge."
Thus, the section, by its terms, has application where:
(A) two or more public utilities,
(B) furnishing a like service or product,
(C) (1) doing business within the same municipal corporation or locality within this state; or,
(2) having lines which intersect or parallel each other,
(D) wish to contract with each other to enable them to operate their lines or plants in connection with each other.
Preconditions (A) and (B) are definitely present in the case at bar and the commission so found. However, neither alternative prerequisite (C) (1) or (C) (2) is fulfilled. The commission expressly found that "[t]here is no evidence in the record to indicate that all three respondents are doing business in the same locality within this state, or***have lines which intersect or parallel each other."
A review of the record supports the commission's finding if "intersect" and "parallel" are not held to be synonymous with "interconnect." The lines of the utilities definitely interconnect for purposes of emergency, load sharing, and convenience. The commission is also correct that the utilities are not "doing business" in the same municipality or locality if such term is construed as meaning "competing for business."
This court has been reluctant to disturb determinations of fact made by the commission unless it appears that they "are manifestly against the weight of the evidence," Cleveland v. Pub. Util. Comm. (1965), 3 Ohio St.2d 82, 84.
We find the commission's interpretations of the statute to be reasonable and lawful.
In addition, the statute pertains only to contracts for the joint operation of their facilities. The commission found that the contracts under attack concerned planning, ownership, and construction.
Further support for the commission's position comes from the first paragraph of R.C. 4905.16 which provides that:
"When and as required by the public utilities commission, every public utility shall file with it a copy of any contract, agreement, or arrangement, in writing, with any other public utility relating in any way to the construction, maintenance, or use of its plant or property, or to any service, rate, or charge."
The commission's power to require filing of contracts under R.C. 4905.16 would be surplusage if approval of the same contract is required under R.C. 4905.48.
It should be noted that Congress through the Atomic Energy Act of 1954, as amended (Sections 2011 et seq., Title 42, U.S. Code), and the Energy Reorganization Act of 1974 (Sections 5801 et seq., Title 42, U.S. Code), has preempted state legislation in this area. See Northern States Power Co. v. Minnesota (C.A. 8, 1971) 447 F.2d 1143, affirmed 405 U.S. 1035.
The commission's order being neither unreasonable nor unlawful is affirmed.
Order affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.