In re Duke Energy Ohio, Inc.
| Decision Date | 22 September 2021 |
| Docket Number | 2020-0511 |
| Parties | IN RE APPLICATION OF DUKE ENERGY OHIO, INC., for a Certificate of Environmental Compatibility and Public Need for the C314V Central Corridor Pipeline Extension Project; Waltz, City Mgr., et al., Appellants; Power Siting Board, Appellee; Duke Energy Ohio, Inc., Intervening Appellee. |
| Court | Ohio Supreme Court |
David T. Stevenson, Cincinnati, Reading Law Director, for appellants city of Reading and Patrick Ross.
Dinsmore & Shohl, L.L.P., Bryan E. Pacheco, and Mark G. Arnzen, Cincinnati, for appellant David Waltz.
Fair Shake Environmental Legal Services and John A. Heer, for appellant Neighbors Opposed to Pipeline Extension, L.L.C.
Dave Yost, Attorney General, John J. Jones, Section Chief, and Steven L. Beeler, Thomas G. Lindgren, and Robert A. Eubanks, Assistant Attorneys General, for appellee.
Barnes & Thornburg, L.L.P., C. David Paragas, and Jeanine Kerridge ; and Jeanne W. Kingery, Columbus, Rocco O. D'Ascenzo, and Larisa M. Vaysman, for intervening appellee.
Stewart, J. {¶ 1} Appellants, the city of Reading and its safety-service director, Patrick Ross ("Reading"); the city manager for the city of Blue Ash, David Waltz ("Blue Ash"); and Neighbors Opposed to Pipeline Extension, L.L.C. ("NOPE"), appeal an order of appellee, Ohio Power Siting Board, granting a certificate of environmental compatibility and public need to intervening appellee, Duke Energy Ohio, Inc., for the construction, operation, and maintenance of a natural-gas pipeline in Hamilton County. Appellants argue, among other things, that the board misapplied the statutory criteria governing certificate approval, decided the case on incomplete information, misweighed the evidence, and limited their ability to meaningfully participate. We disagree and affirm.
{¶ 2} In March 2016, Duke notified the board that it would soon be applying for a certificate of environmental compatibility and public need to construct a natural-gas pipeline. Duke filed the application about five months later, stating that it had decided to reduce the pipeline's proposed diameter from 30 to 20 inches and its proposed operating pressure from 600 to 400 pounds per square inch gauge.
{¶ 3} Duke refiled and amended the application in January 2017, stating that the pipeline formed part of its "long-term planning process to retire propane-air plants, balance system supply from north to south, and support the replacement of aging infrastructure." To this end, Duke proposed two routes for the pipeline: a preferred route and an alternate route. Both routes would start at a point near the intersection of Hamilton, Warren, and Butler Counties and run approximately 13 to 14 miles in a mostly north-to-south direction through Hamilton County. The preferred route would end in Fairfax; the alternate route in Norwood.
{¶ 4} The board notified Duke in March 2017 that the application had been certified as sufficiently complete. In May 2017, the board's staff filed its investigatory report on the proposal, recommending that the board grant a certificate for the alternate route because, among other things, that route presented fewer adverse effects on the project area.
{¶ 5} In August 2017, Duke filed a motion to stay the proceedings, explaining that it needed additional time to investigate concerns associated with specific sites along the alternate route. The board granted the motion.
{¶ 6} In April 2018, Duke asked the board to reestablish the proceedings (the board later did so) and filed a six-part supplement to the application. Duke explained that prior to the time the staff had filed its report recommending the alternate route, its focus had been on the preferred route, for which the design was partially complete and soil borings, utility locations, and surveying had been significantly completed. Duke took additional time during the stay to investigate the alternate route and meet with stakeholders, which led it to modify the alternate route's path to reduce the impact of construction on affected municipalities and businesses. Minor alignment changes, Duke said, would continue to be implemented as the engineering design progressed.
{¶ 7} Duke provided supplemental reports in July 2018, one addressing a Superfund site and the other addressing environmental risks associated with specific properties.
{¶ 8} In March 2019, the staff filed an amended investigatory report that replaced and superseded its May 2017 report. The amended report accounted for Duke's supplemental information and reports and, as before, recommended that the board consider the alternate route, subject to conditions.
{¶ 9} In November 2019, after a three-day evidentiary hearing, the board issued a lengthy order in which it determined that the proposed pipeline met the criteria of R.C. 4906.10(A) and granted Duke a certificate for the construction, operation, and maintenance of the pipeline along the alternate route, subject to 41 conditions. Several parties sought rehearing of the board's order, which the board denied. Reading, Blue Ash, NOPE, and the village of Evendale then filed this appeal.
{¶ 10} During the appeal's pendency, we denied a motion to stay the board's order, 159 Ohio St.3d 1413, 2020-Ohio-3275, 147 N.E.3d 654, and dismissed Evendale's assignments of error and sua sponte dismissed Evendale as a party, 159 Ohio St.3d 1467, 2020-Ohio-3884, 150 N.E.3d 120.
{¶ 11} We apply the same standard of review to a board order that we would apply to an order of the Public Utilities Commission of Ohio ("PUCO"). See In re Application of Black Fork Wind Energy, L.L.C. , 138 Ohio St.3d 43, 2013-Ohio-5478, 3 N.E.3d 173, ¶ 10, citing R.C. 4906.12. Under this standard, we will reverse, vacate, or modify a board order "if, upon consideration of the record, [we are] of the opinion that such order was unlawful or unreasonable." R.C. 4903.13. We "will not reverse or modify a board decision as to questions of fact when the record contains sufficient probative evidence to show that the board's decision was not manifestly against the weight of the evidence and was not so clearly unsupported by the record as to show misapprehension, mistake or willful disregard of duty." In re Application of Champaign Wind, L.L.C. , 146 Ohio St.3d 489, 2016-Ohio-1513, 58 N.E.3d 1142, ¶ 7. Our review of legal questions is de novo. Id.
{¶ 12} Under Ohio law, an applicant for a gas-pipeline certificate must file with the board's chairperson "[s]uch * * * information * * * as the board by rule or order may require." R.C. 4906.06(A)(6). By rule, the application "shall include fully developed information on two * * * routes," one designated as a "preferred" route and the other as an "alternate" route. Ohio Adm.Code 4906-3-05. Each route "shall be a viable alternative on which the applicant could construct the proposed facility." Id. Within 60 days of receiving the application, the chairman shall either accept it as complete and in compliance with R.C. 4906.06 and the board's rules or reject it as incomplete with a statement explaining the basis of the rejection. Ohio Adm.Code 4906-3-06(A)(1) and (2).
{¶ 13} Reading argues that the board should have denied Duke's application because the alternate-route proposal was not accompanied by "fully developed information" under Ohio Adm.Code 4906-3-05. Because Duke failed to provide this information, Reading says, the board ran afoul of due process by arbitrarily applying its rule. Reading points to Duke's supplemental filings and information, which it obtained in discovery, all of which postdate Duke's March 2017 application. In particular, Reading points to a Superfund site, a report showing that Duke had modified the alternate route to avoid impinging on a site held for future development, and a report known as the Western Route Constructability Review that shows construction challenges that Duke would incur along some of Reading's narrower roads. Reading also points to the amended staff report of March 2019, which recounts Duke's concession that "it had not evaluated th[e] [alternate] route with the level of detail necessary to pursue its potential construction," and Duke's additional investigation of the alternate route after the staff issued its May 2017 report.
{¶ 14} The board's decision all but concedes that Duke did not provide the requisite information when it was supposed to. Its order cites the testimony of Gary Hebbeler, vice president of Duke's gas operations, who explained that Duke initially focused on designing the preferred route but then shifted its focus to the alternate route after receiving the staff's May 2017 report. The board observed that it "generally expects that an applicant will have fully investigated both of its proposed routes and include ‘fully developed information’ on both routes in the application." Power Siting Bd. No. 16-0253-GA-BTX, ¶ 122 (Nov. 21, 2019). Yet, the board determined that Duke had provided the information required by R.C. 4906.06(A) and unspecified rules, that the staff had received the information necessary to perform its investigation, that the intervenors had been afforded ample opportunity to participate in the proceeding, and that the intervenors had access to Duke's information through discovery.
{¶ 15} Under the circumstances, it is hard to fault the logic of Reading's argument that Duke's application lacked fully developed information on two routes, given that Duke had to request a pause in the proceedings to shore up and submit supplemental information pertaining to the alternate route. The board responds that, as the board's administrative law judge had found, Duke's supplemental information satisfied Ohio Adm.Code 4906-3-11(A) ’s provision allowing an applicant...
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