Airco Indus. Gases v. Indiana Michigan Power Co.
| Decision Date | 27 May 1993 |
| Docket Number | No. 93A02-9206-EX-273,93A02-9206-EX-273 |
| Citation | 614 N.E.2d 951 |
| Parties | , Util. L. Rep. P 26,313 AIRCO INDUSTRIAL GASES, Slater Steels Corporation, and Liquid Carbonics Corporation, Appellants-Petitioners, v. INDIANA MICHIGAN POWER COMPANY, Appellee-Respondent. |
| Court | Indiana Appellate Court |
John F. Wickes, Jr., Todd A. Richardson, Lewis & Kappes, Indianapolis, for appellants-petitioners.
Mare E. Lewis, Indiana Michigan Power Co., Fort Wayne, Stanley C. Fickle, Teresa E. Morton, Barnes & Thornburg, Indianapolis, for appellee-respondent.
Appellants Airco Industrial Gases, Slater Steels Corporation, and Liquid Carbonics Corporation petitioned the Indiana Utility Regulatory Commission for a refund of alleged overcharges for electrical service provided to them by Appellee Indiana Michigan Power Company. The Commission denied the request on grounds the remedy Appellants sought involved retroactive rate making and was thus beyond the Commission's statutory authority. Appellants now appeal, raising two issues for our review which we consolidate and rephrase as: Does the Commission have the authority under the Indiana Code to grant the Appellants' request for a refund? We hold the Commission does have such authority and therefore reverse the Commission's decision and remand this cause for further proceedings.
Indiana Michigan Power Company (IMP) is a corporation organized under the laws of the State of Indiana and is engaged in the business of granting, purchasing, transmitting, distributing, selling and providing electric utility service to the public. It is therefore a public utility and subject to the jurisdiction of the Indiana Utility Regulatory Commission (the Commission). Appellants (collectively referred to as Airco) are industrial consumers who purchase electrical power from IMP. Prior to February 9, 1989, IMP filed with the Commission two tariffs 1 relevant to the case before us: the Industrial Power (IP) tariff, which specifies a standard rate charged for electrical services provided to industrial consumers, and the Alternative Interruptible Power (IRP) tariff, which specifies a far lower rate than the IP tariff.
Under a contract for electrical power with the IP tariff, a customer's entire contract load capacity was "firm," that is, IMP could not readily interfere with that customer's usage. The IRP tariff on the other hand permitted IMP to request the customer to curtail its usage by up to 75% of its contract load capacity. The remaining 25% was "semi-interruptible," that is, IMP could interfere with the power usage, but only if the customer failed to comply with IMP's request for curtailment.
On February 9, 1989 IMP petitioned the Commission for approval of new electrical service rates and for approval of new rules and regulations pursuant to Ind.Code Sec. 8-1-2-42(a). At that time Airco was part of a group of thirteen businesses located in Northwest Indiana and the City of Fort Wayne, referred to as the Industrial Consumers for Fair Utility Rates (ICFUR). Airco, as a member of ICFUR, intervened in IMP's petition as did General Motors Corporation and Inland Steel Industries (collectively referred to as GM & I/N Tek).
GM & I/N Tek proposed several changes to IMP's terms and conditions, including a recommendation that the customer be given the option of designating which portion of its contract capacity was firm and which portion was interruptible. After conducting extensive hearings, the Commission entered a Rate Order on August 24, 1990, which, among other things, acknowledged that GM & I/N Tek's recommendation was meritorious and directed IMP to revise its IRP tariff "to allow a customer to designate its firm and interruptible load." Record at 94. The Commission ordered IMP to file a new schedule of rates and charges with the Engineering Division of the Commission. Shortly thereafter IMP filed its new schedule. However, rather than revising the tariff to include a provision allowing customers to designate their firm and interruptible load, IMP's new schedule deleted the existing provision and replaced it with the "firm and interruptible load" provision. The schedule was accepted and approved by the Engineering Department and IMP proceeded to charge its customers under the terms of the new IRP tariff.
On September 13, 1990, Airco filed a petition for rehearing before the Commission. 2 In its petition Airco objected to that portion of the Commission's Order directing IMP to revise the IRP tariff to allow a customer to designate its firm and interruptible load. Airco did not argue or otherwise raise the issue of whether the revised tariff failed to comply with the Commission's Order. The petition was denied February 6, 1991. Thereafter, on July 17, 1991, the Commission entered its Final Order of Rehearing which resolved certain issues unrelated to this case.
On July 30, 1991, Airco filed a petition designated as an "objection" to the IRP tariff. In this petition Airco for the first time argued that the tariff filed by IMP did not comply with the Commission's Order of August 24, 1990. Airco requested that the Commission (a) treat the petition as one for rehearing, (b) order IMP to file tariffs consistent with the Commission's Order and (c) grant an appropriate refund or credit to those customers receiving services under the improper tariff. After conducting a hearing the Commission entered an Order on February 5, 1992, acknowledging that the IRP tariff was unlawful and should not have been accepted by the Engineering Division, and directing IMP to file revised tariffs consistent with its August 24 Order as amended by the Final Order of July 17, 1991. The Commission did not address the issue of credits or refunds.
Thereafter, Airco filed a petition seeking: (1) leave to introduce evidence of the amounts which it alleged IMP had unlawfully collected and (2) an Order directing IMP to refund those amounts. On May 27, 1992, the Commission entered an Order denying the petition ruling, among other things, that to grant a refund would constitute retroactive rate making which it had no authority to do. Airco now appeals.
In reviewing administrative agency determinations, we are bound by the findings of fact made by the agency if those findings are supported by substantial evidence. Hamilton County Dept. of Public Welfare v. Smith (1991), Ind.App., 567 N.E.2d 165, 167-68. However, questions of law are the province of the judiciary and on review the court may set aside any agency...
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