Hamm v. South Carolina Public Service Com'n
| Decision Date | 08 January 1992 |
| Docket Number | No. 23575,23575 |
| Citation | 307 S.C. 188,414 S.E.2d 149 |
| Parties | , 130 P.U.R.4th 47, Util. L. Rep. P 26,173 Steven W. HAMM, Consumer Advocate for the State of South Carolina, Appellant, v. SOUTH CAROLINA PUBLIC SERVICE COMMISSION and Carolina Power and Light Company, Respondents. NUCOR STEEL, A DIVISION OF NUCOR CORPORATION, Appellant, v. SOUTH CAROLINA PUBLIC SERVICE COMMISSION; Carolina Power and Light Company; Steven W. Hamm, Consumer Advocate for the State of South Carolina; The South Carolina Energy Users Committee; and Shaw Air Force Base, on behalf of the Federal Executive Agencies of the United States of America, Respondents, of whom Steven W. Hamm is also an Appellant (Two Cases). CAROLINA POWER AND LIGHT COMPANY, Petitioner-Respondent, v. SOUTH CAROLINA PUBLIC SERVICE COMMISSION, Respondent. . Heard |
| Court | South Carolina Supreme Court |
Steven W. Hamm, Raymon E. Lark, Jr., and Elliott F. Elam, Jr., Columbia, for appellant South Carolina Dept. of Consumer Affairs.
Francis P. Mood, of Sinkler & Boyd, P.A., Columbia, and Garrett A. Stone of Ritts, Brickfield & Kaufman, Washington, D.C., for appellant Nucor Steel, Inc.
Marsha A. Ward & Gayle B. Nichols, Columbia, for respondent South Carolina Public Service Com'n.
William F. Austin, Columbia, and Len S. Anthony, of Raleigh, N.C., for respondent Carolina Power and Light Co.
Major Robert F. Russell of Shaw Air Force Base, and Major Gary A. Enders of Tyndall Air Force Base, for respondent Shaw Air Force Base.
Arthur G. Fusco of Sherrill & Rogers, P.C., Columbia, for respondent South Carolina Energy Users Committee.
This is an electric utility rate case in which two intervenors appeal the order of respondent Public Service Commission (PSC) granting a rate increase to respondent Carolina Power and Light Company (CPL). Appellant Nucor Steel, CPL's largest South Carolina customer, appeals the denial of its request for a discount rate; appellant Consumer Advocate (Hamm) contests certain amounts included in the approved rate base. The circuit court affirmed PSC's order. We affirm.
(1) Is PSC's order on rehearing void?
(2) Did the parties timely appeal to the circuit court?
(3) Is there substantial evidence to support PSC's finding that Nucor is not entitled to a Distribution Service Voltage Discount?
(4) Is there substantial evidence to support PSC's findings regarding rate base?
This case has a long and complex procedural history. In March 1988, CPL applied for a rate increase amounting to $47.8 million in additional revenue. In August 1988, PSC issued its order allowing increased rate revenue of $25 million. On appeal, however, the circuit court found PSC's findings insufficient and in May 1990 remanded the case for specific findings pursuant to Able Communications, Inc. v. South Carolina Public Service Comm'n, 290 S.C. 409, 351 S.E.2d 151 (1986).
On July 9, 1990, PSC reissued its 1988 order with specific findings. On July 19, Nucor filed a petition for rehearing. Hamm filed a petition for rehearing on July 23.
On July 31, Hamm received notice of a PSC directive ruling on the merits of only one of the issues raised in Hamm's petition for rehearing. PSC voted to suspend consideration of the remaining issues raised in the parties' petitions for rehearing in light of the circuit court's assertion of jurisdiction over the case. 1 The record does not indicate Nucor received any notice of PSC's action on July 31.
On September 7, Nucor filed a petition for judicial review in circuit court. On September 13, PSC issued its order on rehearing which Hamm received on September 20. Hamm filed a petition for judicial review in circuit court on October 10.
Nucor contends PSC's September 13 order on rehearing is void because it was issued more than twenty days after Nucor's petition for rehearing was filed.
S.C.Code Ann. § 58-27-2150 (1976), which governs rehearings of matters involving electric utilities, provides:
After an order or decision has been made by the Commission any party to the proceedings may within ten days after service of notice of the entry of the Under this statute, we find PSC's order on rehearing is not void because PSC did act on the petitions for rehearing within twenty days as required. The fact the written order on rehearing was not issued until after expiration of the twenty-day period is not determinative. Under the plain language of the statute, all that is required is that PSC must "act upon" a petition for rehearing within that time period. Here, PSC considered both parties' petitions and voted to defer to the circuit court's assertion of jurisdiction. It is not fatal to the validity of PSC's order on rehearing that Nucor did not receive notice of its action taken within the twenty-day period.
order or decision apply for a rehearing in respect to any matter determined in such proceedings and specified in the application for rehearing, and the Commission may, in case it appears to be proper, grant and hold such rehearing. The Commission shall either grant or refuse an application for rehearing within twenty days, and a failure by the Commission to act upon such application within that period shall be deemed a refusal thereof. (Emphasis added)
Further, S.C.Code Ann. § 58-27-2310 (1976), which governs appeals in matters involving electric utilities, provides in pertinent part:
[N]o cause of action shall accrue to vacate or set aside, either in whole or in part, any order of the Commission, except an order on a rehearing, unless a petition to the Commission for a rehearing has been filed and refused or deemed refused because of the Commission's failure to act thereon within twenty days. Any action brought hereunder must be commenced within thirty days from the date of service of notice of the order of the Commission on a rehearing or of its refusal of a petition for rehearing, either by order or failure to act thereon within twenty days. (Emphasis added).
Under this statute, the parties' time to appeal is measured from notice of PSC's denial of a petition for rehearing "either by order or failure to act thereon within twenty days." Because of the impact on the circuit court's jurisdiction to determine an appeal of a PSC order, we address the issue of timeliness of the parties' appeals to the circuit court in this case to clarify the operation of §§ 58-27-2150 and 58-27-2310.
As discussed above, Nucor received no notice of any PSC action on Nucor's petition for rehearing within twenty days of its filing. Nucor therefore properly filed an action for judicial review in the circuit court within thirty days of expiration of the twenty-day period for PSC to act. Hamm, on the other hand, did receive notice of PSC's action on his petition for rehearing within the twenty-day period following its filing. Hamm therefore properly filed an action for judicial review in circuit court within thirty days of receipt of the written order on rehearing.
In conclusion, when an order on rehearing is issued by PSC more than twenty days after the filing of the petition for rehearing, the circuit court has jurisdiction of an action for judicial review if: (1) the appealing party received notice within twenty days of filing a petition for rehearing that PSC acted on the petition and the party filed an action for judicial review within thirty days of receipt of PSC's order on rehearing; or (2) the appealing party received no notice within twenty days of filing a petition for rehearing that PSC acted on the petition and the party filed an action for judicial review within thirty days of expiration of the twenty-day period.
Concluding the circuit court properly exercised jurisdiction in both appeals, we now address the merits of each.
In 1987, PSC approved the following Distribution Service Voltage Discount:
When Customer owns the step-down transformation and all other facilities beyond the transformation, except Company's metering equipment, necessary to take service at the voltage of the distribution line of 12.47 kV or higher from which Customer receives service, the charge per kW and per kWh will be In this action for a rate increase, CPL sought to change the provision regarding the substation from "built exclusively" to "built primarily" for the customer's use. PSC approved CPL's proposed revision and found Nucor ineligible for this discount because Nucor does not receive service from a distribution line. It concluded the revision from "exclusive" to "primarily" did not affect Nucor since Nucor was not eligible for this discount in any event.
reduced by $0.60 per kW and $.0001 per kWh. The distribution line source must be from other than a transmission-to-distribution substation built exclusively for Customer's use in order to qualify for the distribution Service Voltage Discount
Nucor contends it is entitled to the refund under the original 1987 tariff and further that CPL should not be permitted to discriminate against it by changing the substation requirement from "exclusively" to "primarily" in order to exclude Nucor from the discount. 2
On appeal from a PSC order, factual findings will be affirmed if supported by substantial evidence. Hamm v. American Telephone & Telegraph Co., 302 S.C. 210, 394 S.E.2d 842 (1990); Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981). The record indicates Nucor does not take service from a CPL distribution line as required under the language of the tariff: "the distribution line ... from which the customer receives service." Although Nucor does take service at the voltage of 12.47 kV as required in the tariff, its service agreement with CPL specifies the point of delivery for electricity is at the point where Nucor's conductors are connected to the bus, or heavy conductor, within CPL's substation. Thus, Nucor does not "receive service" from a CPL distribution line whose source is from...
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