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Bloom Township HS v. Commerce Comm'n, No. 1-99-0625

1st District, 24 November 1999

FOURTH DIVISION

JUSTICE HOFFMAN delivered the opinion of the court:

The petitioners, Bloom Township High School, K & M Plastics, Inc., Marshall Field & Company (Marshall Field), and St. Therese Medical Center, filed separate complaints with the Illinois Commerce Commission (Commission) against the respondent, Commonwealth Edison Company (ComEd), alleging that ComEd wrongfully assessed penalty fees and other charges against them for excessive use of electrical power during the "heat wave" in July 1995. The Commission consolidated the complaints and subsequently entered summary judgment in favor of ComEd. The petitioners have filed a joint petition for review, contending that the Commission erred in granting summary judgment for the following reasons: (1) the "Rider 30 Interruptible/Curtailment Service" tariff (Rider 30), under which they were receiving electrical power, required ComEd to make reasonable efforts to provide them with "buy-through energy"⁽¹⁾ in lieu of curtailment; (2) the Commission violated section 2-1005 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1005 (West 1996)) by determining on summary judgment that ComEd made reasonable efforts to provide buy-through energy and that "emergency conditions" existed on July 14, 1995, such that the purchase of buy-through energy was impermissible; and (3) the Commission erred in denying Marshall Field's motion for summary judgment, asserting that it did not receive proper notice of the curtailment.

ComEd filed a tariff with the Commission, known as Rider 30, the purpose of which is to assist ComEd in providing cost-effective and reliable electricity by reducing the amount of electricity that ComEd must provide during peak periods of demand. Service pursuant to Rider 30 is available to certain non-residential customers of ComEd who have discretionary electrical loads which can be interrupted or curtailed. Under Rider 30, customers such as the petitioners enter into contracts with ComEd and agree to reduce their electricity usage to a pre-established Firm Power Level⁽²⁾ (FPL) upon request by ComEd. In exchange for their commitment to limit their electricity usage, ComEd agrees to compensate the customers by applying credits to their electricity bills.

Pursuant to Rider 30, the customers must elect to receive service under one of three options (A, B, or C). The three types of service differ in the number of interruptions or curtailments ComEd is allowed to invoke per year, the maximum number of hours an interruption or curtailment may last, the extent of the notice period before a curtailment can be initiated, the credits to which the customer is entitled, and the ability of the customer to purchase buy-through energy in lieu of curtailment. In this case, all of the petitioners elected to receive service under option C, which specifically provides:

"Under this option, the customer may purchase energy during a curtailment period at a cost of $.15/kWh for all killowatthours consumed during the curtailment period associated with 30-minute demands which exceed the customer's Firm Power Level. Such purchases are referred to as purchases in lieu of curtailment. Demand levels associated with such purchases shall be considered when determining the customer's Maximum Demand as determined by the otherwise applicable rate. The availability of such energy shall be at the discretion of the Company, which shall notify the customer of its expected availability at the time the notice of curtailment is given. A reasonable effort to maintain that availability during a curtailment period will be made. The customer shall not be allowed to make purchases during emergency conditions." [Emphasis added].

Rider 30 further provides that all customers, other than those option C customers who purchase buy-through energy, shall be assessed a penalty⁽³⁾ if their demand for power during a curtailment exceeds their pre-selected FPL. According to the parties, on July 13, 1995, the temperatures in the Chicago area reached record levels and ComEd experienced a system peak demand for power. ComEd gave its option C customers notice of a curtailment and provided them with the opportunity to purchase buy-through energy. On July 14, 1995, the temperatures again reached record levels, and ComEd issued another curtailment. This time, ComEd did not offer its option C customers buy-through energy, and all of the petitioners refused to limit their energy usage during the curtailment. As a result, ComEd imposed penalty fees and other charges against them for their energy demand that exceeded their FPL during the curtailment. Each of the petitioners subsequently filed a complaint with the Commission, alleging that ComEd misapplied Rider 30 and wrongfully assessed penalty fees and other charges against them because ComEd failed to make reasonable efforts to provide them with buy-through energy during the curtailment as required by option C. The petitioners did not challenge the amount of the fees and charges assessed against them. In fact, they admitted that, if ComEd was entitled to such fees, then the amount assessed against them was correct. The Commission consolidated the petitioners' complaints and scheduled an evidentiary hearing for April 20, 1998.

Prior to the hearing, both the petitioners and ComEd submitted extensive written testimony in support of their positions, as permitted by section 200.660 of the Public Utilities Rules of Practice (83 Ill. Adm. Code