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LEHIGH VALLEY POWER COMMITTEE AIRCO INDUSTRIAL GASES v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (06/29/89)

decided: June 29, 1989.

LEHIGH VALLEY POWER COMMITTEE; AIRCO INDUSTRIAL GASES, A DIVISION OF THE BOC GROUP, INC.; KEYSTONE CEMENT COMPANY; LONE STAR INDUSTRIES, INC.; MACK TRUCKS, INC.; OWENS-ILLINOIS, UNION CARBIDE CORPORATION AND ZINC CORPORATION OF AMERICA, PETITIONERS,
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT



PETITION FOR REVIEW, (PUBLIC UTILITY COMMISSION).

COUNSEL

David M. Kleppinger, Richard S. Kahlbaugh, McNees, Wallace & Nurick, Harrisburg, for petitioners.

Lee E. Morrison, Asst. Counsel, Bohdan R. Pankiw, Deputy Chief Counsel, Daniel P. Delaney, Chief Counsel, Harrisburg, for respondent.

Paul E. Russell, David J. Dulic, Asst. Counsels, Allentown, David B. MacGregor, Paul R. Bonney, Wayne R. Dillaghey, Morgan, Lewis & Bockius, Philadelphia, for PP & L.

Irwin A. Popowsky, Sr. Asst. Consumer Advocate, David M. Barasch, Consumer Advocate, Office of Consumer Advocate, Phillip F. McClelland, Asst. Consumer Advocate, Harrisburg, for Office of Consumer Advocate.

Crumlish, Jr., President Judge, Craig, Doyle, Barry, Colins, Palladino and Smith, JJ. Palladino, J., dissents.

Author: Colins

[ 128 Pa. Commw. Page 261]

Lehigh Valley Power Committee (LVPC)*fn1 petitions for review of an order of the Pennsylvania Public Utility Commission (Commission) which dismissed LVPC's complaint

[ 128 Pa. Commw. Page 262]

    filed in opposition to an Energy Cost Rate (ECR) filing of PP & L.*fn2 We affirm.

I. PROCEDURAL HISTORY

PP & L filed a preliminary ECR with the Commission on November 1, 1987 and a final ECR on December 1, 1987. On December 9, 1987 PP & L submitted a downward revised ECR. Payments to qualifying facilities (QFs) for energy delivered during the period were included in the ECR.*fn3 On December 11, 1987, LVPC filed a complaint against the ECR filing. In its complaint, LVPC's principal objection was to PP & L's recovery of payments made to QFs through the ECR when such payments "substantially exceed the present level of avoided costs." (LVPC Complaint at 3.) LVPC requested that the Commission suspend or reject the effective date of the revised ECR filing and conduct full evidentiary hearings to examine the reasonableness and lawfulness of the proposed rates. At its public meeting of December 17, 1987, the Commission approved

[ 128 Pa. Commw. Page 263]

PP & L's revised ECR filing, allowing it to become effective January 1, 1988.

On January 4, 1988, PP & L filed an Answer to LVPC's complaint, a Motion to Dismiss and a Memorandum of Law in support thereof. PP & L posited several reasons for dismissal of the complaint. First, it noted that the Commission had specifically approved the rates and ECR recovery of the amounts paid in the matter of Re: Pennsylvania Power and Light Co. (Joint Petition), 61 Pa.P.U.C. 577 (1986).*fn4 Further, it argued that whether payments exceeded current avoided costs was irrelevant since the Public Utility Regulatory Policies Act of 1978*fn5 (PURPA), rules promulgated by the Federal Energy Regulatory Commission (FERC)*fn6 and the Commission's regulations promulgated pursuant thereto,*fn7 required utility purchases from

[ 128 Pa. Commw. Page 264]

QFs based upon projections. PP & L also noted that compelling policy reasons support the rates paid to QFs and the recovery of those payments by PP & L and that binding contracts were entered into between QFs and itself in reliance on prior ECR recovery orders of the Commission. PP & L further contended that collateral estoppel prevented relitigation of identical claims previously made by LVPC and rejected by the Commission in the Joint Petition proceeding. Finally, PP & L submitted that since LVPC was in essence objecting to payments that exceed current avoided costs, a result specifically contemplated in the Commission's regulations, LVPC was impermissibly seeking a change in those regulations via a complaint proceeding.

In its Answer to Motion to Dismiss, filed on January 14, 1988, LVPC maintained that it did not allege that the payments to QFs were unreasonable, but rather, that payments above current actual avoided energy costs should not be recovered from rate payers; that the Commission had not specified how or when payments should be recovered; that the Commission's policy of permitting full and immediate recovery through the ECR placed the risk of projections on ratepayers; that collateral estoppel was not applicable since LVPC was a party to only one of three prior proceedings*fn8 and because the issues raised in the complaint were different than those litigated previously; and, that ECR recovery above current avoided costs is at odds with PURPA and FERC regulations.

In his Recommended Decision issued on January 21, 1988, Administrative Law Judge Joseph J. Klovekorn determined that LVPC's complaint should be dismissed without evidentiary hearings pursuant to Section 703(b) of the Public Utility Code (Code), 66 Pa.C.S. § 703(b). The ALJ concluded that no reasonable grounds existed for investigating the

[ 128 Pa. Commw. Page 265]

    complaint and stated that the Commission had previously determined that the rates paid by PP & L to QFs were reasonable in prior orders and had approved ECR recovery of the same payments attacked in the complaint. In addition, he determined that the Commission had already considered and rejected the same arguments, raised by LVPC in the Joint Petition proceeding. Therefore, the ALJ concluded that collateral estoppel prevented relitigation of the same issues. Finally, quoting the language of Section 316 of the Code, 66 Pa.C.S. § 316,*fn9 the ALJ pointed out that the order of the Commission in the Joint Petition proceeding, which authorized PP & L to recover payments for energy purchased pursuant to specified rates through the ECR, had not been appealed by LVPC or any other party and, therefore, remained conclusive upon all parties to the prior proceeding including LVPC.

LVPC and the Office of Consumer Advocate (OCA) which had intervened in the ECR filing, filed exceptions to the ALJ's Recommended Decision. On April 5, 1988, the Commission entered a final order which adopted the ALJ's Recommended Decision dismissing LVPC's complaint. LVPC filed a timely Petition for Review with this Court. OCA has intervened on behalf of LVPC and PP & L has intervened on behalf of the Commission.

Our scope of review is, of course, limited to a determination of whether constitutional rights have been violated, or an error of law has been committed, or whether the Commission's findings, determinations or order are supported by substantial evidence. United States Steel Corp. v. Pennsylvania Public Utility Commission, 69 Pa. Commonwealth Ct. 134, 450 A.2d 1073 (1982).

The Commission is vested with the discretion to dismiss a complaint under Section 703 of the Code, 66 Pa.C.S. § 703. A decision to dismiss a complaint without

[ 128 Pa. Commw. Page 266]

    holding hearings will be reversed by this Court only if there was an abuse of discretion. Id.

LVPC first submits that the Commission erred in its application of the doctrine of collateral estoppel and, therefore, improperly dismissed LPVC's complaint. The second issue raised for review is whether LVPC's due process rights were violated by the Commission's approval of full and immediate pass-through of purchased power costs to ratepayers without affording LVPC a hearing. LVPC requests that this Court remand for a hearing on its complaint so that the Commission may limit PP & L's recovery of payments to QFs to PP & L's current avoided cost and reconcile any over or underrecovery based upon a comparison of the ...


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