Ameropan Oil Corp. v. Commerce Comm'n

Second Division
July 21, 1998

No. 1-97-2762

AMEROPAN OIL CORPORATION,

Intervenor-Petitioner-Appellant,

v.

ILLINOIS COMMERCE COMMISSION, an Administrative
Agency in the State of Illinois, COMMONWEALTH EDISON
CO., and THE CITY OF CHICAGO, a Municipal Corporation,

Respondents-Appellees.)
)
)
)
)
)
)
)
)
)
)Petition for Review of Order of
the Illinois Commerce
Commission.



JUSTICE TULLY delivered the opinion of the court:
Petitioner, Ameropan Oil Corporation, appeals the Illinois Commerce Commission's (ICC) May
21, 1997 decision approving a petition filed by Commonwealth Edison Co. (ComEd) on August 15, 1996
to relocate a portion of a transmission line. The ICC had approved the transmission line's original location
on January 27, 1993. This court has jurisdiction pursuant to the Illinois Public Utilities Act (Act) (220
ILCS 5/10-101 (West 1996)) and Supreme Court Rules 301 and 335 (134 Ill. 2d Rs. 301, 335).

FACTUAL BACKGROUND

ComEd is a public utility regulated by the ICC according to the Act (220 ILCS 5/10-101 (West
1996)), and it is responsible for providing adequate, reliable and efficient service to customers in northern
Illinois. It supplies electric power through its transmission system, which consists of 5,500 miles of lines
carrying power at voltages of 138 kilovolts (kV) and above. The 138 kV system supplies downtown
Chicago primarily through twelve 138 kV transmission line circuits, two of which are supported by the
power line at issue in this case.
On January 27, 1993, the ICC issued to ComEd a Certificate of Public Convenience and Necessity
(certificate) which authorized ComEd to construct, operate, and maintain a transmission line between two
of ComEd's generating stations named Crawford and Fisk. The line was approximately 5.6 miles long
and was entered into service soon after its approval in 1993. Since that time, the line has been one of
several means of providing power to the central business district of Chicago.
The line ran in an east-west direction and was located north of Interstate 55 (I-55), also known
as the Stevenson Expressway. The line made two crossings over I-55, one on either end of a 2,350-foot
segment of the line, located south of I-55 near Western Avenue. That segment made a detour around
petitioner's oil tank farm. The crossings were made pursuant to a permit issued by the Illinois Department
of Transportation (IDOT). IDOT provided that the permit would terminate in anticipation of its then-
planned construction of fly-over decks over I-55. The permit required ComEd to "actively pursue
permanent relocation of said high voltage line to eliminate the necessity of its two temporary crossings
of Interstate 55 [, to] report to the Director of Highways of the Department quarterly on the progress of
the permanent location, and to remove the crossings not later than December 31, 1998." On February 15,
1995, IDOT notified ComEd that it would terminate the crossing permits and require ComEd by October
1996 to relocate the 2,350-foot segment of the line which was originally located south of I-55.
ComEd then investigated alternatives for relocating the line. In its August 15, 1996 ICC petition
to amend the 1993 certificate, it proposed to relocate the affected 2,350-foot segment of the line to an area
north of I-55, along existing Santa Fe Railroad rights-of-way on which other parts of the line were already
built. The proposed route for the line would run near petitioner's oil storage tank farm. ComEd asserted
that this alternative was the least-cost option, and that it was the shortest route and occupied existing
rights-of-way which were available for voluntary acquisition. It also argued that the alternative route
allowed construction to be completed before the summer of 1997. ComEd submitted that the proposed
route met all applicable safety standards. According to ComEd, petitioner's safety concerns regarding the
line's crossing the storage tank farm were unsubstantiated. The other alternative that ComEd considered
was located north of petitioner's oil storage tank farm. ComEd did not select that alternative because it
believed it would cost more than the first alternative, would require more time to acquire, and would
present a clearance problem with a billboard.
Petitioner and the City of Chicago were granted leave to intervene in the 1996 proceeding to
relocate the line. Petitioner opposed ComEd's petition, and contended that the proposed relocation would
place the line dangerously close to the oil storage tanks. Petitioner and ComEd filed written testimony.
An ICC hearing examiner conducted an evidentiary hearing on January 16 and February 18, 1997.
Petitioner and ComEd presented testimony. The evidence showed that ComEd wrote in a June 12, 1992
letter to the Office of the Mayor of Chicago that "[t]he portion of the proposed line west of Western
Avenue must cross and extend along the south side of the Stevenson Expressway because there is
insufficient room between [the oil tanks] on both sides of the [railway] to provide clearance to the tanks
to meet NFPA [National Fire Protection Act] and City of Chicago regulations." John Schuh, ComEd's
Real Estate Administrator for Acquisitions and Permits, testified that on January 13, 1993, ComEd wrote
to IDOT that the reason for the permit was that the "transmission line cannot continue on the Santa Fe
Railroad property because [of] the gasoline tank clearance required by the 1990 [NFPA]."
Schuh also testified that ComEd searched for alternative routes, but there were no feasible routes
for purchase. According to Schuh, ComEd would not be able to secure a route in time to have the line
in service by the summer. He also testified that the proposed relocation would not interfere with any
commercial airports or heliports, would not effect any historic or archeological property, and would not
cause the removal of any agricultural land.
Mark Lorenz, the Siting and Estimating Engineer in the Right of Way and Site Selection
Department of ComEd's Transmission System Area, testified that the removal of the 2,350-foot segment
would be completed by October 1996 and that the removal would not effect customers during the winter
months. However, according to Lorenz, the relocation needed to be completed before the 1997 peak load
season. Lorenz explained how the relocated line would be constructed, and stated that the line would
comply with all applicable ICC regulations and orders. According to Lorenz, the proposed relocation
route was ideal for construction, minimized land use impacts, was already covered by rights-of-way held
by ComEd, and permitted relocation at the least cost. He testified that other than the proposed
relocation route, ComEd considered the only other potential route, which would cross and parallel a canal
and then cross back to the existing right of way. Lorenz testified that the alternative route was not
feasible because the land rights were not readily available for voluntary purchase. In addition, that route
would have physically conflicted with existing land uses, which would have increased the cost of the
route. The proposed route would cost approximately $1.1 million, while the alternative route would cost
approximately $3.8 million more than the proposed route. Finally, Lorenz testified that the proposed line
would not pose a hazard to petitioner's oil storage tanks because the line would meet all applicable safety
standards and would be designed in accordance with accepted engineering practices.
Richard Kraus, an engineer with Petroleum Safety Consultants, testified for petitioner. Kraus
presented several reasons why he believed that the proposed line would unfavorably effect the oil storage
tanks, including a likelihood of oil tank fires which could cause power outages. Clement Mesavage, Jr.,
an engineer who provides consulting services regarding bulk liquid terminal facilities, agreed with Kraus
and provided additional testimony that oil tank fires could effect the line and create power outages. Also,
he testified that in his experience, high voltage lines are not typically found near oil tank farms.
ICC staff expert witness Jack McDonald, a utility engineer in the Engineering Department of the
Commission's Public Utilities Division, also testified. McDonald stated that the ICC had adopted the
National Electrical Safety Code, and that based on the hearing testimony, he concluded that the clearances
for the proposed line were adequate. He recommended that the line be relocated in accordance with
ComEd's proposal.
ComEd then presented detailed rebuttal testimony. In ComEd's expert witnesses' opinions, the
proposed relocation route met all applicable safety standards.
At the end of the hearing, the ICC staff recommended granting the petition to amend the
Certificate of Public Convenience and Necessity to relocate the line near petitioner's oil tank farm, stating:
"After listening to the testimony the last two days, it seemed like the
clearance problem is the main part of the case, and, as you know, the
Commission has ad[o]pted the National Electrical Safety Code. And after
listening to Mr. [C]lapp [one of ComEd's expert witnesses] today and the
clearances that he has gone through, we feel that these clearances are
adequate to relocate this line to this location [near the oil tank farm]."
The hearing examiner submitted a proposed order, which the ICC approved on May 21, 1997. In its May
21 order, the ICC found in pertinent part that the line was necessary to supply power to the central
business district of Chicago and that ComEd's plan would assure continued adequate, reliable and efficient
service to that area. It also found that the proposed relocation route was the least-cost feasible means of
restoring service to the line. In addition, the ICC found that:
"Ameropan stated a number of concerns regarding the proposed
relocation of the line. We also note that ComEd considered the safety
concerns as expressed by Ameropan. With regard to those safety
concerns ComEd had various experts conduct analy[s]es of the proposed
line. We find the conclusions reached by those expert witnesses
compelling. The Commission, on the other hand, finds Ameropan's
position unsubstantiated by the evidence of record in this proceeding.
Moreover, the Commission concludes that the evidence demonstrates that
ComEd's proposal for the line not only meets but exceeds the applicable
safety requirements."
Petitioner filed an application for rehearing, which the ICC denied on June 25, 1997. Ameropan filed its
petition for review with this court, and the ICC moved to dismiss it for lack of jurisdiction. It its motion
to dismiss the appeal, the ICC argued that petitioner failed to follow the notice requirements of the Act
(220 ILCS 5/10-101 (West 1996)). According to the ICC, the Act alone determines our jurisdiction over
this appeal. Ameropan argued that only Supreme Court Rules 301 and 335 (134 Ill. 2d Rs. 301, 335)
determine our jurisdiction over this appeal. We denied the ICC's motion to dismiss the appeal on
October 6, 1997.[fn1]

ISSUE PRESENTED FOR REVIEW

On appeal, petitioner argues that the ICC erred in granting ComEd's petition to amend the 1993
certificate to relocate the transmission line near petitioner's oil storage tanks because there was sufficient
evidence of the danger of the line's proximity the tanks.

OPINION

"The powers of courts in reviewing orders issued by the [ICC] are limited [and] [i]t has long been
recognized that upon appeal, the court exercises a statutory jurisdiction rather than a general, appellate
jurisdiction." The City of Chicago v. Illinois Commerce Comm'n, 264 Ill. App. 3d 403, 408, 636 N.E.2d 704, 707 (1993). According to the Public Utilities Act,
"The findings and conclusions of the Commission on questions of fact
shall be held prima facie to be true and as found by the Commission;
rules, regulations, orders or decisions of the Commission shall be held to
be prima facie reasonable, and the burden of proof upon all issues raised
by the appeal shall be upon the person or corporation appealing from
such rules, regulations, orders or decisions." 220 ILCS 5/10-201 (West
1996).
A reviewing court accords an ICC decision great deference because it is the "'judgment of a tribunal
appointed by law and informed by experience.'" United Cities Gas Co. v. Illinois Commerce Comm'n,
163 Ill. 2d 1, 12, 643 N.E.2d 719, 724 (1994), quoting Village of Apple River v. Illinois Commerce
Comm'n, 18 Ill. 2d 518, 523, 165 N.E.2d 329, 331 (1960). The ICC is entitled to great deference
additionally because their decisions "result from the deliberations of members who are better qualified to
interpret evidence supplied by specialists and technicians." The People ex rel. O'Malley v. Illinois
Commerce Comm'n, 239 Ill. App. 3d 368, 392, 606 N.E.2d 1283, 1299 (1993). Furthermore, the ICC is
entitled to great deference in its interpretation of the Public Utilities Act's provisions. Central Illinois
Public Service Co. v. Pollution Control Board, 116 Ill. 2d 397, 507 N.E.2d 819 (1987). As the finder of
fact, the ICC decides the credibility of expert witnesses and the weight to give their testimony. The
People ex rel. Hartigan v. Illinois Commerce Comm'n, 214 Ill. App. 3d 222, 573 N.E.2d 858 (1991). "An
order of the Commerce Commission is presumed to be valid by the court in exercising an independent
judgment in reviewing the order." City of Chicago, 264 Ill. App. 3d at 408, 636 N.E.2d at 707. An ICC
order will be reversed only if it is outside the ICC's jurisdiction or is not supported by substantial
evidence, or if the manner or proceedings in which the ICC arrived at the order violated the State or
Federal Constitution or relevant laws and the appellant was prejudiced. United Cities Gas Co., 163 Ill. 2d at 12, 643 N.E.2d at 724; 220 ILCS 5/10-201(e)(iv)(A)-(D) (West 1996). "Substantial evidence"
consists of evidence which a reasonable person would accept as sufficient to support a certain conclusion.
Central Illinois Public Service Co. v. Illinois Commerce Comm'n, 268 Ill. App. 3d 471, 644 N.E.2d 817
(1994). It is more than a "mere scintilla of evidence but may be somewhat less than a preponderance."
Central Illinois Public Service Co., 268 Ill. App. 3d at 479, 644 N.E.2d at 823.
The Act states that no public utility shall construct a "new plant, equipment, property or facility
which is not in substitution of any existing plant, equipment, property or facility or any extension or
alteration thereof or in addition thereto" unless it receives an ICC certificate of public convenience and
necessity. 220 ILCS 5/8-406(b) (West 1996). The ICC may grant such a certificate when the petitioning
utility establishes:
"(1) that the proposed construction is necessary to provide adequate,
reliable and efficient service to its customers and is the least-cost means
of satisfying the service needs of its customers;
(2) with respect to gas and electric utilities, that the proposed
construction is consistent with the most recent energy plan adopted by the
Commission for the utility and the State, as updated;
(3) that the utility is capable of efficiently managing and supervising the
construction process and has taken sufficient action to ensure adequate
and efficient construction and supervision thereof; and
(4) that the utility is capable of financing the proposed construction
without significant adverse financial consequences for the utility or its
customers." 220 ILCS 5/8-406(b) (West 1996).[fn2]
Furthermore, "[i]n making its determination, the Commission shall attach primary weight to the cost or
cost savings to the customers of the utility. The Commission may consider any or all factors which will
or may effect such cost or cost savings." 220 ILCS 5/8-406(d) (West 1996).
Petitioner argues on appeal that the ICC's decision was in error because the approved relocation
of the line is unreasonably dangerous. According to petitioner, the ICC's finding that the new location
of the line meets the requirements of the National Electrical Safety Code (NESC) does not assure that the
location is safe. In addition, petitioner submits that the NESC is not the exclusive safety code to be
applied in this case and that the new location would not meet the safety requirements of the NFPA.
In part, petitioner relies on Ness v. Illinois Commerce Comm'n, 67 Ill. 2d 250, 367 N.E.2d 672
(1977), which is distinguishable from this case. In Ness, the ICC granted a certificate of public
convenience and necessity to ComEd to construct a transmission line across the plaintiffs' farm land. The
circuit court reversed the ICC's decision, and the supreme court affirmed the circuit court's decision. The
issue in Ness was the effect of ComEd's two proposed routes through agricultural properties. In order to
determine the route selection, the following criteria were used:
"'[A] new right of way will be installed on a route that was selected to
minimize the environmental impact of the line. To the greatest extent
possible, the route will follow existing land use lines, will avoid conflict
with existing structures, and will require a minimum of tree clearing."
After reviewing the record, the supreme court found that the ICC's decision was against the manifest
weight of the evidence because manifestly better alternatives were available. Ness is inapplicable to the
present case, in which the criteria are not limited to environmental impact concerns. The Public Utilities
Act has been amended since Ness to include the criteria we have previously discussed.
In this case, the ICC reviewed the evidence, and found that the "clearance problem" - the distance
between the line and the oil tanks - was the main issue in the case. As the ICC has stated, it adopts the
NESC. Applied to this case it found that the clearances satisfy NESC safety requirements. The ICC
reached its conclusion after hearing expert testimony from petitioner and ComEd, and we accord its
decision great deference. Petitioner rejects the ICC's conclusion and argues that the oil tanks pose a
danger because of the possibility of tank fires or explosions. Petitioner's expert witness, Richard Kraus,
testified that if a fire occurred, the chance of the oil boiling over the tops of the tanks would be 100
percent. In addition, petitioner argues that an electrical conductor could fall and ignite an oil fire or
exacerbate an existing oil fire. Petitioner also speculates about "the unexpected" occurring and makes
irrelevant references to downed electrical lines in Canada, the Space Shuttle disaster, and the Titanic.
Such speculation has no place in the ICC's decision or in our review of it. The ICC acknowledged
petitioner's concerns and noted that ComEd's expert witnesses addressed those concerns. The ICC agreed
with ComEd's witnesses and found petitioner's "position unsubstantiated by the evidence." According to
the ICC, "ComEd's proposal for the line not only meets but exceeds the applicable safety requirements."
Our review of the record shows that the ICC heard the evidence and expert testimony, exercised its
discretion in deciding the credibility of the witnesses, and issued an order which was supported by
substantial evidence.
Furthermore, the ICC found that the proposed relocation line was the least-cost alternative.
Petitioner does not dispute this, and does not dispute that ComEd satisfied the other criteria found in
section 8-406(b) of the Act. Petitioner's remaining arguments are that ComEd delayed its search for
alternative lines; that it presented no evidence that the alternative route was unfeasible; and that there was
no evidence that the line needed to be completed in time for the 1997 peak season. We will not address
these arguments, because they are irrelevant to the criteria in section 8-406(b).
In sum, we find that the ICC's order was supported by substantial evidence. The ICC reviewed
the evidence in light of the criteria in section 8-406(b) of the Act and properly exercised its discretion in
making credibility determinations. Accordingly, we affirm the ICC's order.
Affirmed.
MCNULTY, P.J., and COUSINS, J., concur.
[fn1] The ICC "renews its objection to the Court's jurisdiction" in its appellee's brief. We have
ruled on the ICC's motion to dismiss on jurisdictional grounds and again reject the ICC's argument.
[fn2] In this case, the petition was for an amendment to a previously issued certificate.