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Rural El. Con. Coop. Co. v. Commerce Com.

OPINION FILED OCTOBER 11, 1983.

RURAL ELECTRIC CONVENIENCE COOPERATIVE COMPANY, PLAINTIFF-APPELLEE,

v.

ILLINOIS COMMERCE COMMISSION, DEFENDANT — (CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, DEFENDANT-APPELLANT). — RURAL ELECTRIC CONVENIENCE COOPERATIVE COMPANY, PLAINTIFF-APPELLEE,

v.

ILLINOIS COMMERCE COMMISSION, DEFENDANT-APPELLANT — (CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, DEFENDANT).



Appeal from the Circuit Court of Macoupin County; the Hon. John W. Russell, Judge, presiding.

JUSTICE MILLER DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 4, 1983.

Rural Electric Convenience Cooperative Company (RECC) filed a complaint with the Illinois Commerce Commission (Commission), pursuant to the Electric Supplier Act (Ill. Rev. Stat. 1981, ch. 111 2/3, par. 401 et seq.), requesting that the Commission declare that RECC was entitled to provide electric service to the Freeman United Crown III Coal Mine in Macoupin County. The Commission found that Central Illinois Public Service Company (CIPS) should furnish electric service to the Crown III Mine. RECC sought administrative review of the Commission's decision, and the circuit court of Macoupin County reversed the Commission's decision and held that RECC was entitled to provide service to the mine. CIPS and the Commission appeal from the judgment of the circuit court.

RECC filed a complaint with the Commission on July 10, 1978. In its complaint, RECC alleged that it had received notice from CIPS of a proposed extension of electrical service to the Freeman United Crown III Coal Mine in Macoupin County. RECC alleged that it had the right to serve the mine pursuant to a service-area agreement entered into by RECC and CIPS or, in the alternative, that it was entitled, under the provisions of the Electric Supplier Act (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 401 et seq.), to provide such service. CIPS answered, denying RECC's allegations.

The Crown III Mine's main surface facilities are located in section 1 of Nilwood Township in Macoupin County. Freeman United acquired a total of 810 surface acres for its mining operation and mineral rights in 17,500 subsurface acres. Freeman United estimated that the mine would be in production by May 1982. Freeman has erected buildings, roadways and railroad tracks on the surface acreage it owns and has no plans to use any of that area for farming purposes.

Several hearings were held over a 10-month period. Roy Goode testified that he is the manager of RECC. He stated that RECC had provided electric service to Marvin Moore, whose farm was located on a portion of the land comprising the surface area of the Crown III Mine. RECC began serving the Moore farm in 1961 and service was terminated in 1978. The nearest CIPS line in existence on July 2, 1965, was about one mile from the present site of the mine.

Goode testified that RECC purchases its electricity from Western Illinois Power Cooperative (WIPCO). RECC does not own any transmission (34.5 KV or higher) lines. The service provided to Marvin Moore by RECC was metered at 15 amps and 240 volts. RECC's electricity is supplied by WIPCO through 34.5 KV and 69 KV transmission lines. WIPCO generates its own electricity and also purchases electricity from CIPS. In order to provide electricity to RECC for the purpose of serving the Crown III Mine, WIPCO would purchase electricity from CIPS.

Richard Fairchild, a member of an engineering consulting firm hired by RECC to provide electrical consulting services, testified that RECC is planning to build a substation in Waggoner in late 1983 or early 1984. This substation would be served by a 34.5 KV transmission line furnished by WIPCO. The WIPCO transmission line would run near the Crown III Mine. RECC proposed to tap that line and run a transmission line .35 miles to the Crown III Mine. This transmission line would connect to a metering structure on the premises built by WIPCO and RECC. Fairchild stated that the WIPCO transmission line would tap the CIPS 34.5 KV line, go a mile south, and then turn west .35 miles.

Francis Harmon testified that he is the chief electrical engineer for Freeman United and is familiar with the Crown III operation. The surface areas of the Crown III Mine will require 30-40% of the total power demand at the mine. The mine itself will extend over 17,500 acres at depths of up to 2 1/2 miles. The total demand for power in the mine's first normal year of operation will be 7,000 to 7,500 kilowatts.

Pursuant to the Commission's rules, the prepared statement of R.W. Donaldson was read into the record by the respondent. Donaldson indicated that CIPS proposed to service the Crown III Mine by an extension of the transmission line approximately 1.35 miles from the CIPS existing 34.5 KV line. He stated that RECC has only 7.2/12.5 KV distribution lines in the area, which were not sufficient to service the mine. Donaldson stated that accepted engineering practices required that the Crown III Mine be supplied through a connection to or extension of an existing 34.5 KV line. Donaldson testified that the power demand at the mine would be 700 times greater than the demand of the average farm.

On February 17, 1982, the Commission entered an order directing CIPS to continue furnishing service to the Crown III Mine. A motion for reconsideration was filed by RECC and denied by the Commission. RECC then filed for administrative review in the circuit court of Macoupin County. A hearing was held on December 6, 1982, before Judge Russell and a letter opinion was filed on December 10, 1982. In his opinion, Judge Russell reversed the Commission and found that RECC was entitled to provide service to the mine. A written order was filed on December 30, 1982. A notice of appeal was filed on January 6, 1983.

Both RECC and CIPS have filed motions for judicial notice of certain exhibits in this court. Those motions have been taken with the case and are now decided.

In its motion, CIPS asked this court to take judicial notice of 20 exhibits. Exhibits 1 through 18 are orders of the Commission approving certain service-area agreements between CIPS and various electric cooperatives. CIPS maintains that its agreement with RECC is an adaptation of a model agreement which also forms the basis of the agreements comprising exhibits 1 through 18. Exhibit 19 is a copy of a brief filed by RECC's attorneys in a Commission proceeding involving Wayne-White Electric Cooperative. CIPS contends that this brief is demonstrative of "the prior interpretation of the `model agreement'" by electric cooperatives in this State. Finally, CIPS asked that judicial notice be taken of RECC's brief in General No. 14252, filed in this court on May 20, 1977. CIPS maintains that the arguments made by RECC in that brief are inconsistent with the position it has taken in this case.

RECC, in its motion, asks that the court take judicial notice of its brief and the brief of CIPS filed with the Commission in ESA 208. RECC maintains that these briefs, filed in a subsequent proceeding, rebut the CIPS claim that, because RECC did not raise a theory of contract interpretation until it filed its reply brief with the Commission, CIPS did not have an opportunity to present evidence to the Commission on that issue.

• 1, 2 Judicial notice may be taken by an appellate tribunal at any time, even if judicial notice was denied by the trial court or the parties did not seek it below. (In re Estate of Ersch (1963), 29 Ill.2d 572, 195 N.E.2d 149; Wheeler v. Aetna Casualty & Surety Co. (1973), 11 Ill. App.3d 841, 298 N.E.2d 329, vacated on other grounds (1974), 57 Ill.2d 184, 311 N.E.2d 134.) Orders of the Illinois Commerce Commission may be judicially noticed as public records (Nordine v. Illinois Power Co. (1965), 32 Ill.2d 421, 206 N.E.2d 709). CIPS exhibits 1 through 18 are Commission orders approving various service-area agreements. These agreements are relevant to the CIPS claims that the ...


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