Nos. 2--01--0746 & 2--01--0752 cons.

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS	

	SECOND DISTRICT

_________________________________________________________________

ILLINOIS-AMERICAN WATER COMPANY,  ) Petition for Review of an

as Successor in Interest to	    ) Order of the Illinois

Citizens Utilities Company of     ) Commerce Commission.   

Illinois, d/b/a Citizens Water    ) 

Resources,				    ) 					

						    )

    Petitioner-Appellant,         )

                                  )                       

v.                                ) ICC Docket No. 00--0194   

                                  ) 

ILLINOIS COMMERCE COMMISSION,     )

                                  )

	Respondent-Appellee.         )

_________________________________________________________________

NATIONAL ASSOCIATION OF WATER	    ) Petition for Review of an 

COMPANIES, ILLINOIS-MISSOURI	    ) Order of the Illinois 

CHAPTER,					    ) Commerce Commission.

						    )

	Petitioner-Appellant,	    )

						    )

v.						    ) ICC Docket No. 00--0194

						    )

ILLINOIS COMMERCE COMMISSION,	    )

						    )

	Respondent-Appellee.	    )

_________________________________________________________________

	JUSTICE McLAREN delivered the opinion of the court:

	Petitioners, Illinois-American Water Company, as successor in

interest to Citizens Utilities Company of Illinois, d/b/a Citizens

Water Resources (Citizens), and National Association of Water

Companies, Illinois-Missouri Chapter (Association), appeal a

decision by respondent, Illinois Commerce Commission (the

Commission), disapproving of an agreement between Citizens and a

developer, Terra Cotta Company.  We affirm.

	Citizens was the original petitioner in case No. 2--01--0746. 

On February 19, 2001, we granted the motion of Citizens to

substitute Illinois-American Water Company as the petitioner in

this proceeding.  For reasons of simplicity and the accuracy of

historical fact, we will continue to refer to the petitioner in

case No. 2--01--0746 as Citizens.

	The following facts are taken from the record.  Citizens is a

public utility that provides water and sewer service in six

counties in northeastern Illinois.  Terra Cotta is the owner and

developer of 1,400 acres to be developed with single-family homes,

town homes, and a business park in Prairie Grove.  On this

property, Terra Cotta built a 500,000-gallon elevated water storage

tank, two wells, a well house and lift station, water and sanitary

mains, and a 100,000-gallon-per-day water reclamation facility.  

	On February 16, 2000, Terra Cotta and Citizens entered into an

agreement for the sale of Terra Cotta's water and sewer facilities. 

Citizens petitioned the Commission for a certificate of public

convenience and necessity (certificate) to provide water and

sanitary sewer services to a new development in McHenry County. 

The Commission granted the certificate.  Citizens also requested

approval of the agreement between itself and Terra Cotta.  The

agreement between Terra Cotta and Citizens provided that Citizens

would receive the water facilities for no money down and then would

reimburse Terra Cotta for these facilities as new customers were

added.  However, regarding the sewer facilities, Citizens would

receive the existing facilities for approximately $1.4 million,

without any reimbursement as new customers were added.  Terra Cotta also agreed to finance all future expansions of the sewage

treatment plant. 

	Under the Commission's regulations, when water service is

extended to new customers, the utility is required to provide all

water supply (backbone) plants at its own cost and without

contribution from developers or customers.  83 Ill. Adm. Code

§600.370(a) (1996).  However, if "extensive" plant additions need

to be constructed before customers can be attached to the system,

the utility can require advance funding from a developer.  83 Ill.

Adm. Code §600.370(a) (1996).  In such a case, the utility is

required to refund the developer's advances over time as new

customers are attached.  83 Ill. Adm. Code §600.370(a) (1996). 

Utilities and developers can negotiate agreements regarding the

advances, but such agreements must be approved by the Commission. 

83 Ill. Adm. Code §600.370(a) (1996).  At the hearing before the

Commission, Reed T. Scheppmann, Citizens' vice president and

general manager, testified that the parties negotiated at arm's

length, and Terra Cotta did not object to the terms of the

agreement.  Scheppmann stated that, if the agreement was approved,

the rates charged for sewer service to Terra Cotta customers would

be lower than they would be if Citizens had to make an investment

in new sewer facilities in the development.

	Roy King, a utility engineer for the Commission, testified

that the provision in the agreement relating to the sewer

facilities was not reasonable because it did not provide for a

refund to Terra Cotta for the cost of constructing the sewer

facilities.  King explained that the purpose of a public utility is to permit a group of investors to make an investment in a utility

service, provide that service, and then recover reasonable

operating expenses and a reasonable return.  The regulations serve

as a substitute for competition, since competition is not practical

for most public utilities because of the cost of building a system. 

The regulations serve to insure that utilities do not amass

significant assets with little or no investment. Rather, utilities

should bear the cost of the facilities they use to provide service. 

King stated that the agreement at issue would give Citizens over

$1.4 million worth of sewer facilities without Citizens' making any

investment.  King opined that the potential for such gain, while

decreasing an investor's liability in the operation, would increase

the likelihood for poor service.  Yet, King acknowledged that

"Citizens has consistently demonstrated that they can provide

adequate, reliable and efficient service to their customers" and

that Citizens' purchase of Terra Cotta's water and sewer facilities

was the "least-cost method of providing service to the customers."

	In rebuttal testimony, Scheppmann testified that there was no

regulation requiring a refund to developers for sewer facilities. 

Further, a refund by Citizens to Terra Cotta customers would result

in higher rates.

	The Commission denied the petition seeking approval of the

agreement because it did not provide for a refund to Terra Cotta

for the cost of the sewer plant facilities.  The Commission

interpreted section 600.370(a) (which did not expressly pertain to

sewer facilities) as requiring reimbursement, applicable to both

water and sewer facilities.  The Commission reasoned:

	"[It] [h]ad no difficulty interpreting Section 600.371(a) as

also pertaining to sewer supply plant [sic] to protect against the same unjust enrichment and to protect the same consumer

interests as would result if refunds were not provided for

water supply plant [sic].  To interpret Section 600.370(a) otherwise would permit [Citizens] or any other utility to

amass sewer facilities entirely risk free, obviously

frustrating at least part of the purpose for which the Section

was enacted."

The Commission stated that it did not regard the findings of an

unrelated 1995 Citizens' case to be controlling.

	Following the Commission's decision, the National Association

of Water Companies, Illinois-Missouri Chapter, sought leave to

intervene.  Both Citizens and the Association filed applications

for a rehearing.  The Commission denied these applications.  Both

Citizens and the Association filed timely appeals.  The appeals

have been consolidated.

	Citizens argues that the Commission erred by refusing to

approve the agreement between the parties.  Citizens asserts that

the Commission had no authority to pass judgment on Citizens'

agreement with Terra Cotta.  We note that, on appeal, the

Association does not raise any arguments not raised by Citizens. 

Thus, our analysis also applies to the Association's arguments

contained in its briefs. 

	The purpose of the Public Utilities Act (220 ILCS 5/1--101 et seq. (West 1998)) is to maintain control over the operation of utilities so as to prevent them from exacting unjust, unreasonable, and discriminatory rates.   220 ILCS 5/1-101 et seq. (West 1998); Bloom Township High School v. Illinois Commerce Comm'n, 309 Ill. App. 3d 163, 175 (1999).  In enacting the Public Utilities Act, the

legislature intended, inter alia, to ensure:

		"(d) Equity: the fair treatment of consumers and

investors in order that

			(i) the public health, safety and welfare shall be

protected[.]"  220 ILCS 5/1--102(d)(i) (West 1998).

Accordingly, "[e]ach agreement for such an advance or revenue

guarantee [for supply plants] must be submitted to the Commission

for its approval."  83 Ill. Adm. Code §600.370(a) (1996).

	Here, the agreement involved the sale of both water supply

plant facilities and sewer plant facilities.  Therefore, it was

subject to the approval of the Commission.  Citizens attempts to

use the regulation to limit the broad regulatory authority of the

Commission granted by statute.  We recognize that section

600.370(a) does not require review of agreements for sewer

facilities.  However, the absence of this language does not

preclude the Commission from reviewing the entire agreement.  The

sewer facilities provisions in the agreement are part of a larger

agreement providing a plan that would allow Citizens to take over

the entire water system at Terra Cotta, including purchasing the water supply plant.  Thus, the Commission had authority to review

the entire agreement.  In rendering its decision, the Commission

attempted to consider the agreement consistently with the

legislative intent of promoting fairness and equity while

eliminating competition of water utility services.

	Next, Citizens argues that, by applying section 600.370(a) to

sewer facilities, the Commission changed its rule without following

the proper procedures.  The Illinois Administrative Procedure Act

(5 ILCS 100/1--5 et seq. (West 1998)) provides that "[b]efore the adoption, amendment, or repeal of any rule, each agency shall

accomplish the actions required by Section 5--40, 5--45, or 5--50,

whichever is applicable."  5 ILCS 100/5--35(a) (West 1998).  Each

of those sections sets forth procedures for giving advance notice

of proposed rule changes and soliciting comments from interested

parties.  Section 10--101 of the Public Utilities Act provides:

	"Any proceeding intended to lead to the establishment of

policies, practices, rules or programs applicable to more than

one utility may *** be conducted pursuant to either rulemaking

or contested case provisions, provided such choice is clearly

indicated at the beginning of such proceeding and subsequently

adhered to."  220 ILCS 5/10--101 (West 1998).

	We agree with Citizens that the Commission may not change a

rule without adhering to the proper procedures and that such

procedures were not followed in this case.  However, the Commission

certainly had the authority to determine the reasonableness of the

particular agreement at issue and to disapprove of the agreement

without the creation or formulation of a new rule.  Despite the

broad language of its decision, the Commission did not and could

not exact a rule change applicable to all utilities.  Rather, the

decision controls only the agreement that was before it.  The fact

that the Commission looked to section 600.370(a) to determine the

fairness and reasonableness of the agreement at issue does not make the decision invalid. The interpretation of the Commission is

consistent with its statutorily authorized regulatory powers. 

Citizens interprets section 600.370(a) as limiting such broad

regulatory authority, but we deem that interpretation unreasonable

and in derogation of the broad grant of authority made by the

legislature.

	Citizens also argues that the Commission's decision is not

consistent with its prior interpretations of section 600.370(a),

that held that the section does not apply to sewer plants. 

Citizens cites to a 1995 decision to support its argument, In re Citizens Utilities Co. of Illinois, Ill. Comm. Comm'n Rep. 94--0481 (September 13, 1995).   In that case, the Commission stated that

section 600.370(a) applied only to water plants and not to sewer

service. 

	Citizens fails to recognize that the Illinois Commerce

Commission's orders have no res judicata effect in subsequent proceedings.  The Commission is not a judicial body, but a

regulatory body, and as such it must have the authority to address

each matter before it freely, even if the matter involves issues

identical to those in a previous case.  Illinois-American Water Co. v. Illinois Commerce Comm'n, 322 Ill. App. 3d 365, 368 (2001).  Even if the Commission's order in this case is a departure from a

prior decision, it is squarely within its authority to make two

different determinations in two separate cases that each have

different sets of facts. 

	Citizens further posits that the Commission's decision was not

supported by substantial evidence. On appeal, we must give deference to the Commission's decisions because such decisions are

" 'judgment[s] of a tribunal appointed by law and informed by

experience.' '  [Citation.]"  United Cities Gas Co. v. Illinois Commerce Comm'n, 163 Ill. 2d 1, 12 (1994).  Findings and conclusions of the Illinois Commerce Commission on questions of

fact are held to be prima facie true and will not be disturbed on appeal unless they are against the manifest weight of the evidence. 

220 ILCS 5/10-201(d) (West 1998); Illinois Power Co. v. Illinois Commerce Comm'n, 316 Ill. App. 3d 254 (2000).  To warrant reversal, the appellant must show that the opposite conclusion is clearly

evident.  Lakehead Pipeline Co. v. Illinois Commerce Comm'n, 296 Ill. App. 3d 942, 957 (1998). 

	We have reviewed the testimony of both King and Scheppmann and

conclude that King's testimony, which obviously was accepted by the

Commission, was sufficient to support the conclusion that the

agreement was unreasonable.  King opined that the agreement was

unreasonable because it did not provide a refund to Terra Cotta or

its homeowners for the cost of the sewer facilities.  This

arrangement would give Citizens over $1.4 million worth of sewer

facilities without any investment or risk of capital by Citizens. 

King concluded that the arrangement would increase the likelihood

of poor service and would contravene the purpose of the Public

Utilities Act and the Commission's regulations--- to eliminateing

competition while preventing the utilities from amassing

significant assets with little or no investment.  Thus, there was

ample testimony to support the Commission's findings.  We recognize

that Scheppmann opined that the sewer facility arrangement at issue is reasonable and that such an arrangement would result in lower

rates for Terra Cotta customers than if Citizens had to invest in

sewer facilities itself.  However, this opinion is not sufficient

to rebut the presumption that the Commission's findings are prima facie true.  Thus, we cannot say that the Commission's findings are against the manifest weight of the evidence. 

	The decision of the Illinois Commerce Commission is affirmed.

	Affirmed.

	BOWMAN and GROMETER, JJ., concur.