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A. Finkl and Sons Company v. Illinois Commerce Commission

September 26, 2001

A. FINKL AND SONS COMPANY; ABBOTT LABORATORIES, INC.; CATERPILLAR, INC.; DAIMLER CHRYSLER CORPORATION; FORD MOTOR COMPANY; MODERN DROP FORGE COMPANY, INC.; MONSANTO COMPANY; MOTOROLA, INC.; NABISCO BRANDS, INC.; NORTHWESTERN STEEL AND WIRE COMPANY; OWENS-ILLINOIS, INC.; R.R. DONNELLEY AND SONS; AND VISKASE CORPORATION, PETITIONERS
v.
THE ILLINOIS COMMERCE COMMISSION, ILLINOIS POWER COMPANY, COMMONWEALTH EDISON COMPANY, AND THE PEOPLE OF THE STATE OF ILLINOIS EX REL. JAMES E. RYAN, ATTORNEY GENERAL, RESPONDENTS
THE PEOPLE OF THE STATE OF ILLINOIS EX REL. JAMES E. RYAN, ATTORNEY GENERAL, PETITIONER
v.
COMMONWEALTH EDISON COMPANY; THE ILLINOIS COMMERCE COMMISSION; ILLINOIS POWER COMPANY; A. FINKL AND SONS COMPANY; ABBOTT LABORATORIES, INC.; CATERPILLAR, INC.; DAIMLER CHRYSLER CORPORATION; FORD MOTOR COMPANY; MODERN DROP FORGE COMPANY, INC.; NABISCO BRANDS, INC.; NORTHWESTERN STEEL AND WIRE COMPANY; OWENS-ILLINOIS, INC.; R.R. DONNELLEY AND SONS; AND VISKASE CORPORATION, RESPONDENTS



Administrative Review of the Illinois Commerce Commission No. 00-0259

The opinion of the court was delivered by: Presiding Justice Steigmann

Released for publication October 30, 2001.

A. FINKL AND SONS COMPANY; ABBOTT LABORATORIES, INC.; CATERPILLAR, INC.; DAIMLER CHRYSLER CORPORATION; FORD MOTOR COMPANY; MODERN DROP FORGE COMPANY, INC.; MONSANTO COMPANY; MOTOROLA, INC.; NABISCO BRANDS, INC.; NORTHWESTERN STEEL AND WIRE COMPANY; OWENS-ILLINOIS, INC.; R.R. DONNELLEY AND SONS; AND VISKASE CORPORATION, PETITIONERS
v.
THE ILLINOIS COMMERCE COMMISSION, ILLINOIS POWER COMPANY, COMMONWEALTH EDISON COMPANY, AND THE PEOPLE OF THE STATE OF ILLINOIS EX REL. JAMES E. RYAN, ATTORNEY GENERAL, RESPONDENTS
THE PEOPLE OF THE STATE OF ILLINOIS EX REL. JAMES E. RYAN, ATTORNEY GENERAL, PETITIONER
v.
COMMONWEALTH EDISON COMPANY; THE ILLINOIS COMMERCE COMMISSION; ILLINOIS POWER COMPANY; A. FINKL AND SONS COMPANY; ABBOTT LABORATORIES, INC.; CATERPILLAR, INC.; DAIMLER CHRYSLER CORPORATION; FORD MOTOR COMPANY; MODERN DROP FORGE COMPANY, INC.; NABISCO BRANDS, INC.; NORTHWESTERN STEEL AND WIRE COMPANY; OWENS-ILLINOIS, INC.; R.R. DONNELLEY AND SONS; AND VISKASE CORPORATION, RESPONDENTS

Administrative Review of the Illinois Commerce Commission No. 00-0259

The opinion of the court was delivered by: Presiding Justice Steigmann

PUBLISHED

 On March 31, 2000, respondent Commonwealth Edison Company (ComEd) filed a petition with respondent Illinois Commerce Commission (ICC) seeking expedited approval of the implementation of a market-based alternative tariff to become effective on or before M- 1 -ay 1, 2000. Several parties filed petitions to intervene, including petitioners, the People of the State of Illinois ex rel. Attorney General James E. Ryan (Attorney General), and A. Finkl et al., collectively known as the Illinois Industrial Energy Consumers (Consumers). On April 27, 2000, the ICC issued an "interim order," authorizing ComEd to file tariffs that contained the ICC's proposed modification, with such tariffs to become effective May 1, 2000. In June 2000, the ICC denied the applications for rehearing, which were filed by the Attorney General and Consumers. Both the Attorney General (No. 4-00-0596) and Consumers (No. 4-00-0570) appealed, and we allowed ComEd's motion to consolidate the two appeals.

On appeal, petitioners argue that (1) the April 2000 order was not a "pass-to-file decision" pursuant to section 9-201 of the Public Utilities Act (Act) (220 ILCS 5/9-201 (West 2000)); (2) the ICC did not properly waive the 45 days' notice requirement; (3) the ICC failed to provide a formal hearing; (4) the ICC failed to comply with its own regulations; (5) the April 2000 order is not supported by substantial evidence and lacks sufficient findings and analysis; (6) the tariffs allowed to go into effect under the April 2000 order do not comply with section 16-112 of the Act (220 ILCS 5/16-112 (West 2000)); (7) the ICC failed to find that ComEd's rate changes were "just and reasonable" pursuant to section 9-201(c) of the Act (220 ILCS 5/9-201(c) (West 2000)); and (8) ComEd failed to meet its burden of proving that the rate changes were "just and reasonable." We affirm.

I. BACKGROUND

On March 31, 2000, ComEd filed a "[p]etition for expedited approval of implementation of a market-based alternative tariff, to become effective on or before May 1, 2000, pursuant to [a]rticle IX and [s]section 16-112 of the [Act (220 ILCS 5/16-112 (West 2000))]." ComEd attached to its petition the following:

(1) a summary of the market- based proposal,

(2) draft tariffs,

(3) supporting testimony of three experts,

(4) five supporting affidavits from other interested parties,

(5) a summary description of the contingent wholesale offer, and

(6) a draft order.

To achieve the May 1, 2000, effective date, Com Ed's petition proposed the following schedule:

(1) that the ICC issue a notice on or before April 5, 2000, requesting that any petition to intervene or objections to the petition be filed on or before April 10, 2000;

(2) any hearing be held on or before April 17, 2000;

(3) a hearing examiner's proposed order be issued on or before April 21, 2000, with exceptions due on April 24, 2000; and

(4) an be order entered on April 27, 2000.

The ICC appointed Larry Jones as the hearing examiner for the proceedings. On April 3, 2000, Jones set a prehearing conference for April 13, 2000. On April 5, 2000, Jones ruled that April 10, 2000 (this deadline was later extended to April 11) was the due date for responses to Com Ed's proposed procedural schedule. The Attorney General and Consumers filed petitions to intervene. Both Consumers and the ICC staff (Staff) objected to ComEd's proposed schedule. On April ...


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