319 S.E.2d 695 (S.C. 1984), 22155, Palmetto Alliance, Inc. v. South Carolina Public Service Com'n

Docket Nº:22155.
Citation:319 S.E.2d 695, 282 S.C. 430
Opinion Judge:HARWELL, Justice:
Party Name:PALMETTO ALLIANCE, INC., Appellant, v. SOUTH CAROLINA PUBLIC SERVICE COMMISSION and Piedmont Municipal Power Agency, Respondents.
Attorney:Edmund H. Robinson, Charleston, for appellant. O. Wayne Corley and Robert T. Bockman, of McNair, Glenn, Konduros, Corley, Singletary, Porter & Dibble, Columbia, for respondent Piedmont Municipal Power Agency. C. Dukes Scott, Columbia, for respondent Public Service Comm.
Case Date:August 13, 1984
Court:Supreme Court of South Carolina
 
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Page 695

319 S.E.2d 695 (S.C. 1984)

282 S.C. 430

PALMETTO ALLIANCE, INC., Appellant,

v.

SOUTH CAROLINA PUBLIC SERVICE COMMISSION and Piedmont

Municipal Power Agency, Respondents.

No. 22155.

Supreme Court of South Carolina.

August 13, 1984

       Heard June 8, 1984.

Page 696

       [282 S.C. 431] Edmund H. Robinson, Charleston, for appellant.

       O. Wayne Corley and Robert T. Bockman, of McNair, Glenn, Konduros, Corley, Singletary, Porter & Dibble, Columbia, for respondent Piedmont Municipal Power Agency.

       C. Dukes Scott, Columbia, for respondent Public Service Comm.

       HARWELL, Justice.

       The appellant Palmetto Alliance, Inc. initiated this action for judicial review of a South Carolina Public Service Commission (PSC) Order.

       The respondent Piedmont Municipal Power Agency (PMPA) is an agency composed of ten municipalities which are authorized by the Joint Municipal Electric Power and Energy Act of 1978, S.C.Code Ann. §§ 6-23-60, et seq. (1983), 1 to purchase and operate electric power facilities. The PMPA applied with the PSC for authorization to purchase a 25% interest in Unit No. 2 of the Catawba Nuclear Station from Duke Power Company. The PSC found the purchase to be mutually beneficial to PMPA and Duke and approved the plan.

       [282 S.C. 432] The appellant intervened in the Commission proceedings and contends on appeal to this Court that the Commission's factual findings are insufficient and were made under unlawful procedure. Code § 1-23-380(g)(5) and (g)(3) (1983).

       The circuit court judge properly analyzed the issues on appeal. We accordingly print the pertinent portions of his Order as the opinion of this Court.

       "The scope of review in this matter is clear. This Court '... shall not substitute its judgment for that of the agency as to weight of the evidence on questions of fact.' S.C.Code Ann. § 1-23-380(g) (1976), as amended. Nor may the Court substitute its judgment for that of the Commission '... upon a question as to which there is room for a difference of intelligent opinion....' Chemical Leaman Tank Lines, Inc. v. S.C. Public Service Commission, 258 S.C. 518, 189 S.E.2d 296, 298 (1972). The Commission's orders are presumptively correct. South Carolina Electric and Gas Co. v. Public Service Commission, 275 S.C. 487, 272 S.E.2d 793 (1980).

       In applying the well-accepted 'substantial evidence' standard for judicial review of administrative agency decisions, the South Carolina Supreme Court has stated:

"Substantial evidence" is not a mere scintilla of evidence nor evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached or must have reached in order to justify its action.

       Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304, 306 (1981). Substantial evidence is something less than the weight of the evidence and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. Ellis v. Spartan Mills, 276 S.C. 216, 277 S.E.2d 590 (1981). A judgment upon which reasonable men might differ 'will not be set aside.' Lark v. Bi-Lo, Inc., 276 S.E.2d at 307.

       The Commission clearly found the acquisition of the Project to be beneficial to PMPA. The record on review contains considerable evidence relative to the issue of benefit. Potential cost savings was the motivation for the [282 S.C. 433] formation of PMPA and the decision to acquire the Project. Relative economics and cost savings were the subject of a major portion of the studies prepared by PMPA's consulting engineers, R.W. Beck and Associates, and the testimony in support of those studies. In large measure PMPA's rebuttal evidence was related to the question of the economic benefit

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to PMPA under changed assumptions suggested by Palmetto's witness.

       With respect to the issue of benefit and the factors relating to the potential for benefit, the Commission reviewed the conflicting evidence offered by Palmetto and PMPA. The Commission's Order clearly demonstrates the evaluation of the respective evidence on load forecast, cost projections, estimated capacity factors, risk assessment and the ultimate issue of benefit. In each case, the Commission found PMPA's evidence to be more credible and reliable. For this Court to reach the opposite conclusion would require an exercise amounting to a determination of a matter "peculiarly within the Commission's province," Greyhound Lines, Inc. v. South Carolina Public Service Commission, 274 S.C. 161, 262 S.E.2d 18, 20 (1980), and would entail a substitution of judicial discretion for that of the Commission, a result which this Court is compelled to avoid. Guerard v. Whitner, 276 S.C. 521, 280 S.E.2d 539 (1981). The weighing of the evidence and the drawing of the ultimate conclusion therefrom is for the Commission, not for the Court on review. So. Bell Tel. & Tel. Co. v. Public Service Commission, 270 S.C. 590, 244 S.E.2d 278 (1978). The Commission's findings cannot be overturned "... unless there is no reasonable probability that the facts could be as related by [PMPA's] witness upon whose testimony the finding is based." Lark v. Bi-Lo, Inc., 276 S.E.2d at 307.

       Based on the record before this Court, the Commission's decision cannot be said to be "clearly erroneous in view of the reliable, probative and substantial evidence on the whole record." The evidence is sufficient to "... allow reasonable minds to reach the conclusion which the administrative agency reached or must have reached in order to justify its action." Lark v. Bi-Lo, Inc., 276 S.E.2d at 306. Laws v. Richland County School Dist. No. 1, 270 S.C. 492, 243 S.E.2d 192 (1978).

       [282 S.C. 434] Palmetto further asserts that the Commission failed to adequately consider the six statutory factors identified by S.C.Code Ann. § 6-23-60 (1976), as amended. That assertion is not supported by a review of the Commission's orders. The six factors which the Commission must consider are:

(i) The economies and efficiencies to be achieved in constructing on a large scale, facilities for the generation and transmission of electric power and energy;

(ii) The municipalities' needs for reserve and peaking capacity and to meet obligations under pooling and reserve-sharing agreements reasonably related to its needs for power and energy to which it is or may become a party;

(iii) The estimated useful life of such project;

(iv) The estimated time necessary for the planning, development, acquisition or construction of such project and the length of time required in advance to obtain, acquire or construct additional power supplies;

(v) The reliability and availability of existing or alternative power supply sources and the costs of such existing or alternative power supply sources; and

(vi) The load forecast of capacity of a project and the utilization of such capacity by the joint agency for a reasonable period of time subsequent to the date of commercial operation of the project.

       In the hearing in November, PMPA's witness Holmes testified specifically that each of these six issues had been taken into consideration in Beck's Preliminary Engineering Report and in all subsequent analyses performed by the consulting engineers. The Commission's Order referred particularly to certain conclusions in that Report which reflected each of the statutory considerations.

       The Commission's Order is explicit with demonstrations of the Commission's consideration of the six statutory issues. The issues identified...

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