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LUKENS STEEL COMPANY v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (11/04/85)

decided: November 4, 1985.

LUKENS STEEL COMPANY, A DIVISION OF LUKENS, INC., PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT



Appeal from the Order of the Pennsylvania Public Utility Commission in case of Petition of Lukens Steel Company, a Division of Lukens, Inc., for an order declaring the acquisition of certain property of Pennsylvania Power & Light Company for the purpose of taking delivery of Pennsylvania Power & Light Service to be in the public interest, No. P-810310.

COUNSEL

Edward J. Riehl, McNees, Wallace & Nurick, of Counsel: James L. Slattery, General Counsel of Lukens Steel Company, for petitioner.

Kandace Foust Melillo, Assistant Counsel, with her, Louise A. Knight, Deputy Chief Counsel, and Charles F. Hoffman, Chief Counsel, for respondent.

Irwin A. Popowsky, Assistant Consumer Advocate, with him, David M. Barasch, Consumer Advocate, for intervenor, Office of Consumer Advocate.

Gerald Gornish, with him, Mark R. Rosen, of Counsel: Wolf, Block, Schorr and Solis-Cohen, and Edward G. Bauer, Jr., Vice President and General Counsel, and Eugene J. Bradley, Jr., Associate General Counsel, for intervenor, Philadelphia Electric Company.

G. D. Caliendo, with him, Bridget E. Grady and David J. Dulick, for intervenor, Pennsylvania Power & Light Company.

President Judge Crumlish, Jr., and Judges Rogers, Craig, MacPhail, Doyle, Colins and Palladino. Opinion by Judge Rogers. Judge Colins dissents.

Author: Rogers

[ 92 Pa. Commw. Page 532]

This is a petition for review of the opinion and order of the Pennsylvania Public Utility Commission

[ 92 Pa. Commw. Page 533]

(PUC), entered January 17, 1984, which denied the petitioner Lukens Steel's (Lukens) request for a declaration by the PUC that the acquisition by Lukens of certain property owned by Pennsylvania Power and Light (PP&L) for the purpose of permitting Lukens to take delivery of PP&L electric service under Tariff Rate LP-6, is consistent with the public interest.

Lukens produces a full line of plate steel products, rolled and finished slabs or ingots cast in its electric melt shop located at Coatesville, Chester County. This plant currently receives electrical service from Philadelphia Electric Co. (PECO) under Tariff Rate HT. PECO has been granted a certificate of convenience and necessity by the PUC, under the provisions of Sections 1101 and 1102(a) of the Public Utility Code, 66 Pa. C.S. ยงยง 1101 and 1102(a), to provide electric service to all customers situated in PECO's defined service area. Lukens is situated in PECO's service area. No other utility has been granted the authority to provide retail electric service in PECO's territory.*fn1

Lukens claimed that the cost of electricity supplied by PECO during times of Lukens' normal production, is unacceptable; that Lukens must either reduce production, with an attendant reduction in its work force, or secure electrical power at a lower cost. Such lower cost electrical power is available, according to Lukens, by purchasing electrical power from PP&L instead of

[ 92 Pa. Commw. Page 534]

PECO. To obtain service from PP&L, Lukens proposes to acquire a right-of-way, the Face Rock Newlinville Right-of-Way, and a 66 KV transmission line from PP&L. These facilities extend approximately ten miles from a point near Lukens' facility at Coatesville to PP&L's service territory in Lancaster County. They are owned by PP&L. The right-of-way does not have an explicitly defined width over its entire length. The line is presently de-energized for the majority of its length. More than half of the line is located in PECO's service territory.

PP&L has agreed to transfer the right-of-way and transmission line to Lukens only upon the issuance of a PUC declaration that the acquisition of the property for the purpose of delivery of service by PP&L to Lukens, is in the public interest. PP&L has also required Lukens to pay all costs associated with the construction by PP&L of the 230 KV transmission line which would be necessary to connect Lukens to PP&L's system. This line will be approximately sixteen miles long, would take five years to design and build and will require PUC siting approval. Lukens would be required to construct and maintain an additional transmission line from the point of connection with PP&L at its Atglen substation to the Coatesville plant, using, to a large degree, the transmission line corridor acquired from PP&L.

After filing and other proceedings not necessary to describe, the matter was assigned to Administrative Law Judge Robert A. Christianson, who concluded that the acquisition by Lukens of property from PP&L for the purpose of enabling Lukens to take PP&L electric service, was consistent with the public interest and should be permitted. Exceptions to the Initial Decision were filed by the PUC, Lukens, PECO, and Office of Consumer Advocate (OCA).

[ 92 Pa. Commw. Page 535]

After a public meeting, the PUC entered the order here appealed which provided:

1. That the petition of Lukens Steel Company for an order declaring the acquisition of certain property of Pennsylvania Power & Light Company for the purpose of taking delivery of Pennsylvania Power & Light Company service to be in the public interest is denied.

2. That Lukens, Philadelphia Electric Company and Pennsylvania Power & Light Company are directed to meet with the Commission's Bureau of Rates and the Bureau of Conservation . . . for the purpose of investigating possible sources of lower cost electricity which might be available to Lukens.

Lukens filed the petition for review of that order now before us. PECO, OCA and PP&L support the PUC's order.

We may not disturb an order of the PUC unless we determine that constitutional rights were violated, an error of law was committed or necessary findings of fact were not supported by substantial evidence. Teltron, Inc. v. Pennsylvania Public Utility Commission, 83 Pa. Commonwealth Ct. 407, 477 A.2d 599 (1984); Pennsylvania Electric Co. v. Pennsylvania Public Utility Commission, 78 Pa. Commonwealth Ct. 402, 467 A.2d 1367 (1983); Western ...


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