[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In 

re Fuel Adjustment Clauses for Columbus S. Power Co. & Ohio Power Co., Slip Opinion No. 

2014-Ohio-3764.] 

NOTICE

This slip opinion is subject to formal revision before it is published in 

an advance sheet of the Ohio Official Reports. Readers are requested 

to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 

65 South Front Street, Columbus, Ohio 43215, of any typographical or 

other formal errors in the opinion, in order that corrections may be 

made before the opinion is published. 

SLIP OPINION NO. 2014-OHIO-3764 

IN RE FUEL ADJUSTMENT CLAUSES FOR COLUMBUS SOUTHERN POWER 

COMPANY AND OHIO POWER COMPANY;

OHIO POWER COMPANY, APPELLANT AND CROSS-APPELLEE;

INDUSTRIAL ENERGY USERS-OHIO, APPELLEE AND CROSS-APPELLANT;

PUBLIC UTILITIES COMMISSION, APPELLEE AND CROSS-APPELLEE. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as In re Fuel Adjustment Clauses for Columbus S. Power Co. & 

Ohio Power Co., Slip Opinion No. 2014-Ohio-3764.] 

Public utilities—Electric security plan—Fuel adjustment clause—Adjustment for 

cancellation of contract and settlement agreement with coal supplier. 

(No. 2012-1484—Submitted March 12, 2014—Decided September 3, 2014.) 

APPEAL AND CROSS-APPEAL from the Public Utilities Commission, 

Nos. 09-872-EL-FAC and 09-873-EL-FAC. 

____________________ 

O’CONNOR, C.J. 

SUMMARY

{¶ 1} In 2009, the commission approved the first electric security plan 

(“ESP”) for the American Electric Power operating companies, Columbus 
SUPREME COURT OF OHIO

2 

Southern Power and Ohio Power Company (hereafter referred to jointly as “AEP” 

or the “companies”). This ESP was in effect from 2009 through 2011. 

{¶ 2} As part of the ESP, the commission approved a fuel-adjustment 

clause (“FAC”), which allowed the companies to recover fuel costs for providing 

generation service as those costs were incurred, without having to file a new rate 

case. The FAC operates as a separate charge from the base generation rate. The 

FAC automatically goes up and down with the cost of fuel, while the base rate 

stays the same. 

{¶ 3} The commission also required that the FAC be subjected to quarterly 

updates and annual prudency and accounting reviews to reconcile the rates 

collected with the actual fuel costs incurred. The updates and annual reviews 

were designed to ensure that AEP was recovering only the true cost of fuel from 

ratepayers. 

{¶ 4} This appeal stems from the commission’s first annual review of 

AEP’s FAC mechanism, covering the time period from January 1 to December 

31, 2009. In the case below, an auditor found that both Ohio Power and 

Columbus Southern Power had underrecovered fuel costs through the FAC in 

2009.1 The auditor recommended that the commission review whether any 

proceeds that AEP had received from a 2008 contract settlement agreement with a 

coal supplier should be credited against Ohio Power’s underrecovered fuel costs 

for 2009, given that the settlement agreement resulted in Ohio Power having to 

purchase a portion of its coal at a higher price starting in 2009. After review, the 

commission found that all of the proceeds from this settlement agreement should 

be offset against Ohio Power’s FAC underrecovery. On rehearing, the 

commission clarified that only the share of the settlement proceeds allocable to 

Ohio retail customers must be credited. 

 

1

 Columbus Southern Power’s underrecovery is not at issue in this case. 
January Term, 2014 

3 

{¶ 5} Ohio Power appealed, challenging the commission’s decision to 

credit the proceeds from the 2008 settlement against the underrecovered 2009 fuel 

costs. Industrial Energy Users–Ohio (“IEU”) filed a cross-appeal, arguing that 

the commission erred on rehearing when it limited the amount of the credit to 

only those proceeds allocable to Ohio retail customers. 

{¶ 6} For the reasons discussed in detail below, we affirm the 

commission’s orders. 

FACTS AND PROCEDURAL BACKGROUND

{¶ 7} Ohio requires electric-distribution utilities to provide consumers 

with “a standard service offer of all competitive retail electric services necessary 

to maintain essential electric service to consumers, including a firm supply of 

electric generation service.” R.C. 4928.141(A). The standard-service offer is 

applicable to customers who receive generation service from the incumbent 

distribution utility instead of buying it on the market from a provider of 

competitive retail electric service. “The utility may provide the offer in one of 

two ways: through a ‘market-rate offer’ under R.C. 4928.142 or through an 

‘electric security plan’ under R.C. 4928.143.” In re Application of Columbus S. 

Power Co., 128 Ohio St.3d 512, 2011-Ohio-1788, 947 N.E.2d 655, ¶ 5. AEP 

chose to provide standard service under an electric security plan. 

{¶ 8} On March 18, 2009, the commission issued an opinion and order 

approving AEP’s first ESP, to be in effect from 2009 to 2011. In re Application 

of Columbus S. Power Co. and Ohio Power Co. for Approval of an Electric 

Security Plan, Pub. Util. Comm. Nos. 08-917-EL-SSO and 08-918-EL-SSO 

(March 18, 2009) (the “ESP Order”).2

 In the ESP Order, the commission 

 

2

 We first reviewed the commission’s approval of the electric security plan in 2011. In re 

Application of Columbus S. Power Co., 128 Ohio St.3d 512, 2011-Ohio-1788, 947 N.E.2d 655. In 

that case, we found that the commission committed reversible error on three issues, and remanded 

for further consideration. The commission’s remand order was appealed. We affirmed the 
SUPREME COURT OF OHIO

4 

authorized a FAC mechanism for the companies to recover costs associated with 

fuel, purchased power, and environmental compliance. The commission did so 

under R.C. 4928.143(B)(2)(a), which provides for the “[a]utomatic recovery” of 

“the cost of fuel used to generate the electricity supplied under the [standard 

service] offer,” “provided the cost is prudently incurred.” In order to reconcile 

the rates collected under the FAC with the actual fuel costs incurred by the 

companies to provide generation service, the commission established quarterly 

FAC adjustments and an annual audit to review the prudence of the fuelprocurement decisions and the appropriateness of the accounting of the FAC 

costs. 

{¶ 9} In the ESP Order, the commission also established caps on how 

much AEP could increase its rates each year of the plan. See R.C. 4928.144 

(authorizing “any just and reasonable phase-in of any electric distribution utility 

rate * * * as the commission considers necessary to ensure rate or price stability 

for consumers”). Under the rate caps, AEP could increase rates only by a set 

percentage each year. During the term of the ESP, AEP deferred for future 

collection a portion of the annual incremental fuel costs recovered under the FAC 

that exceeded the rate caps. Amounts earned but not collected each year would 

go into a deferral account and, as required by R.C. 4928.144, accrue carrying 

charges. 

{¶ 10} Prior to the 2009 ESP, the companies were operating under a Rate 

Stabilization Plan (“RSP”), which the commission approved in 2005 to be in 

effect from 2006 through 2008. In re Application of Columbus S. Power Co. and 

Ohio Power Co. for Approval of a Post-Market Development Period Rate 

Stabilization Plan, Pub. Util. Comm. Nos. 04-169-EL-UNC (Jan. 26, 2005) 

(hereafter the “RSP Order”). Among other things, the RSP provided AEP with 

 remand order on February 13, 2014. In re Application of Columbus S. Power Co., 138 Ohio St.3d 

448, 2014-Ohio-462, 8 N.E.3d 863. 
January Term, 2014 

5 

automatic, fixed increases in generation rates for the three years of the plan. 

Unlike the ESP, the generation rates under the RSP were bundled, meaning that 

there was no separate FAC mechanism to recover fuel costs above the levels set in 

rates. In sum, AEP was guaranteed to recover the fixed level of fuel costs 

embedded in its generation rates, but AEP bore the risk of loss if costs rose above 

the amount collected in rates. Thus, once the terms of the ESP replaced those of 

the RSP in 2009, AEP no longer bore the same risk of loss from rising fuel costs. 

{¶ 11} Before and during the effective period of the RSP, Ohio Power 

regularly purchased coal from one of its suppliers, Peabody Development 

Company, at a fixed price under the terms of a 20-year coal-supply contract.3

 The 

contract was effective through 2012, but by mid-2007, the price of coal under the 

contract was significantly below the market price for coal. A dispute over the 

contract arose that Ohio Power decided to resolve to avoid litigation. 

{¶ 12} Under the settlement agreement, Ohio Power and Peabody agreed 

to terminate the 1992 contract as of the end of 2008. Thus, in 2009, Ohio Power 

had to begin purchasing replacement coal to fuel its generation plants at much 

higher market prices. In exchange for agreeing to the early termination, Ohio 

Power received total proceeds of $71.6 million. Specifically, Peabody paid Ohio 

Power $30 million in cash. Peabody also transferred a West Virginia coal reserve 

to Ohio Power, which the company valued at $41.6 million. 

{¶ 13} This case began when the commission initiated an audit proceeding 

to review the companies’ FAC for 2009. See In re Fuel Adjustment Clauses for 

Columbus S. Power Co. and Ohio Power Co., Pub. Util. Comm. Nos. 09-872-ELFAC and 09-873-EL-FAC (Nov. 18, 2009). In January 2010, the commission 

 

3

 The agreement was between American Electric Power Service Corporation, a subsidiary of 

American Electric Power Company, and Peabody. Because this case involves only Ohio Power’s 

fuel costs, we refer solely to Ohio Power as the party of interest. 
SUPREME COURT OF OHIO

6 

appointed Energy Ventures Analysis, Inc. to perform a management/performance 

audit and a financial audit. 

{¶ 14} Energy Ventures Analysis filed its audit report with the 

commission in May 2010. The audit report noted that AEP’s fuel supply is 

largely coal-based, and coal-procurement costs are by far the largest component 

of the FAC. The report found that at the end of the first year (2009) of the FAC, 

AEP experienced a large underrecovery of fuel costs. The underrecovery 

amounts totaled $297.6 million for Ohio Power and $37.5 million for Columbus 

Southern Power. According to the auditor, many components contributed to the 

underrecovery, but two coal-contract events alone explained more than half of it. 

{¶ 15} The auditor made no recommendation regarding the first coal 

contract event. But the auditor recommended that the commission review 

whether any proceeds that Ohio Power had received from the second contract 

event—the 2008 settlement agreement with Peabody—should be credited against 

Ohio Power’s underrecovered fuel costs for 2009. 

{¶ 16} In its opinion and order, the commission determined that all 

proceeds from the settlement agreement should be credited against Ohio Power’s 

FAC underrecovery for 2009. In re Fuel Adjustment Clauses for Columbus S. 

Power Co. and Ohio Power Co., Pub. Util. Comm. Nos. 09-872-EL-FAC and 09-

873-EL-FAC (Jan. 23, 2012) (the “FAC Order”). Ohio Power had previously 

booked $13.3 million of the settlement proceeds as a credit against the FAC 

underrecovery for 2009 and 2010, with the remaining $58.3 million credited to 

2008 fuel expenses. The commission, however, required Ohio Power to credit the 

$58.3 million to offset underrecovered fuel costs for 2009. 

{¶ 17} The commission recognized that this situation was unique because 

Ohio Power’s fuel costs were not regulated in 2008 when the settlement 

agreement occurred and Ohio Power had recorded the benefits of that agreement 

on its books of account. But the commission found that Ohio Power ratepayers 
January Term, 2014 

7 

were paying significantly more for coal in 2009 than they would have paid had 

Ohio Power not entered into the settlement agreement. The commission reasoned 

that the price of coal under the Peabody supply contract was significantly below 

market in 2008 and absent the settlement agreement Ohio Power would have 

continued to receive shipments of low-priced coal under the contract through the 

ESP period (2009 through 2011). And because the Peabody contract was 

terminated at the end of 2008, Ohio Power had to purchase replacement coal to 

fuel its generation plants at significantly higher prices in 2009. Therefore, the 

commission held that “in order to determine the real economic cost of coal used 

during the [2009] audit period, more of the value realized by [Ohio Power] for 

entering into the Settlement Agreement should flow through to [Ohio Power] 

ratepayers through a credit to [Ohio Power]’s under-recovery and deferrals.” 

{¶ 18} In addition, the commission noted that the true value of the coal 

reserve was not yet known and that Ohio Power had planned to begin the 

permitting process to mine the coal, which would enhance the value of the 

reserve. Therefore, the commission directed Ohio Power to hire an auditor to 

examine the value of the coal reserve and to make a recommendation to the 

commission as to whether the increased value—if any—above the $41.6 million 

already required to be credited should also be credited to Ohio Power’s 

ratepayers. 

{¶ 19} On rehearing, the commission reduced the amount of the settlement 

proceeds to be credited against Ohio Power’s underrecovery for 2009. The 

commission recognized that Ohio Power’s fuel expenses are allocated between 

Ohio retail expenses, non-Ohio retail expenses, and wholesale expenses and that 

the same is true regarding the allocation of revenues. The commission therefore 

determined that only the share of the settlement proceeds allocable to Ohio retail 

customers of Ohio Power was required to be credited against the 2009 FAC 

underrecovery. 
SUPREME COURT OF OHIO

8 

{¶ 20} During the next round of rehearings, IEU challenged this 

determination, arguing that the settlement proceeds should be allocated fully to 

Ohio retail jurisdiction customers. The commission rejected IEU’s claim. 

{¶ 21} Ohio Power then filed this appeal, and IEU followed with a crossappeal. After review, we find that neither party has demonstrated reversible error. 

STANDARD OF REVIEW

{¶ 22} “R.C. 4903.13 provides that a PUCO order shall be reversed, 

vacated, or modified by this court only when, upon consideration of the record, 

the court finds the order to be unlawful or unreasonable.” Constellation 

NewEnergy, Inc. v. Pub. Util. Comm., 104 Ohio St.3d 530, 2004-Ohio-6767, 820 

N.E.2d 885, ¶ 50. We will not reverse or modify a PUCO decision as to questions 

of fact where the record contains sufficient probative evidence to show that the 

commission’s decision was not manifestly against the weight of the evidence and 

was not so clearly unsupported by the record as to show misapprehension, 

mistake, or willful disregard of duty. Monongahela Power Co. v. Pub. Util. 

Comm., 104 Ohio St.3d 571, 2004-Ohio-6869, 820 N.E.2d 921, ¶ 29. The 

appellant bears the burden of demonstrating that the commission’s decision is 

against the manifest weight of the evidence or is clearly unsupported by the 

record. Id. 

{¶ 23} Although we have “complete and independent power of review as 

to all questions of law” in appeals from the PUCO, Ohio Edison Co. v. Pub. Util. 

Comm., 78 Ohio St.3d 466, 469, 678 N.E.2d 922 (1997), we may rely on the 

expertise of a state agency in interpreting a law where “highly specialized issues” 

are involved and “where agency expertise would, therefore, be of assistance in 

discerning the presumed intent of our General Assembly.” Consumers’ Counsel 

v. Pub. Util. Comm., 58 Ohio St.2d 108, 110, 388 N.E.2d 1370 (1979). 
January Term, 2014 

9 

DISCUSSION

Ohio Power’s Appeal

{¶ 24} Ohio Power challenges the commission’s orders on three primary 

grounds: (1) the commission engaged in unlawful retroactive ratemaking when it 

credited the settlement proceeds against 2009 FAC costs, (2) ratepayers have no 

valid claim to the proceeds associated with the coal reserve, and (3) the 

commission lacked jurisdiction to modify the ESP Order. None of these 

arguments compels reversal. 

I. Ohio Power’s Proposition of Law No. I: The commission 

engaged in unlawful retroactive ratemaking and violated the 

prohibition against retroactive application of laws

{¶ 25} In its first proposition of law, Ohio Power contends that the 

commission’s decision constitutes unlawful retroactive ratemaking. In addition, 

Ohio Power argues that the commission’s orders applied 2008 Am.Sub.S.B. No. 

221 retroactively in violation of Section 28, Article II of the Ohio Constitution 

and R.C. 1.48. 

{¶ 26} The gravamen of Ohio Power’s retroactivity arguments is that the 

commission has reached back into the prior RSP rate plan to review a fuel 

transaction that occurred in 2008, which is outside the FAC audit period under 

review in this case. 

A. Ohio Power presented no evidence that supported 

its retroactive-ratemaking argument 

{¶ 27} Ohio Power’s primary argument under its first proposition of law is 

that the commission engaged in unlawful retroactive ratemaking when it applied 

the proceeds from the 2008 settlement agreement to offset 2009 fuel costs, instead 

of applying those proceeds against 2008 fuel costs. But Ohio Power has provided 

no evidence that the underlying order affected the rates charged in 2008 under the 

RSP. Nor has Ohio Power demonstrated that the commission’s decision to apply 
SUPREME COURT OF OHIO

10 

proceeds from the 2008 settlement agreement against 2009 fuel costs was 

unreasonable. 

{¶ 28} Ohio Power’s theory centers on the filed-rate doctrine. Under this 

doctrine, a utility may charge only the rates fixed by its current, commissionapproved tariff. See R.C. 4905.32; Keco Industries, Inv. v. Cincinnati & 

Suburban Bell Tel. Co., 166 Ohio St. 254, 257, 141 N.E.2d 465 (1957). Keco and 

its progeny also hold that present rates may not make up for excessive rate 

charges due to regulatory delay. Green Cove Resort I Owners’ Assn. v. Pub. Util. 

Comm., 103 Ohio St.3d 125, 2004-Ohio-4774, 814 N.E.2d 829, ¶ 27 (“Neither the 

commission nor this court can order a refund of previously approved rates, 

however, based on the doctrine set forth in Keco * * *”). And though the 

commission has the power to invalidate a rate schedule and fix new rates, this 

ratemaking power is prospective only. See Ohio Util. Co. v. Pub. Util. Comm., 58 

Ohio St.2d 153, 157-158, 389 N.E.2d 483 (1979). 

{¶ 29} Ohio Power maintains that the commission violated the filed-rate 

doctrine because the “financial impact” of the commission’s FAC Order is to 

retroactively reduce commission-approved rates charged in 2008 under the RSP. 

Ohio Power states that because a fixed level of fuel costs was embedded in rates 

charged under the RSP, it bore the entire risk for unrecovered fuel costs during 

the RSP period if fuel costs rose above the amounts collected in rates. Ohio 

Power asserts that in the underlying order the commission increased the 

company’s 2008 fuel costs by taking proceeds from the settlement agreement that 

should have been applied against 2008 fuel costs and applying them to offset 

2009 fuel costs. According to Ohio Power, the effect of the order was to 

retroactively reduce the RSP generation rates (by increasing the cost of fuel used 

to provide power in 2008 above the level charged in rates under the RSP), thereby 

causing a loss in revenue to the company. 
January Term, 2014 

11 

{¶ 30} Whether the commission’s FAC order reduced Ohio Power’s RSP 

rates, in effect or explicitly, is a question of fact. Indeed, two essential premises 

of Ohio Power’s argument here are factual: (1) that crediting proceeds from the 

2008 settlement agreement against 2009 fuel costs increased Ohio Power’s cost of 

fuel used to generate power in 2008 and (2) that the guaranteed rate increases 

built into the RSP did not recover fuel costs incurred by the company in 2008. 

Yet Ohio Power provides only a single citation to the record to support its claim. 

That citation, however, is not helpful. 

{¶ 31} The pertinent section of Ohio Power’s initial brief contains a single 

citation to the record: the Audit Report at 2-23 and 2-24. In this part of its brief, 

Ohio Power challenges the commission’s finding that ratepayers had paid 

significantly more for coal beginning in 2009 than they otherwise would have 

absent the 2008 settlement agreement. According to Ohio Power, this section of 

the Audit Report proves the opposite: that “[t]he evidence confirms that the 

probable result, absent the 2008 Buyout Agreement, was that the supplier for the 

underlying coal contract would have defaulted and AEP Ohio would have had to 

procure replacement coal at higher prices” in 2009. But the section of the Audit 

Report cited has nothing to do with the 2008 settlement agreement. Rather, the 

report refers to an agreement that Ohio Power had entered into with a different 

coal supplier. 

{¶ 32} Moreover, a review of the record confirms the commission’s 

finding that ratepayers paid more in 2009 fuel costs as a result of the 2008 

settlement agreement. The record reflects that the 2008 settlement agreement 

terminated a 20-year coal-supply contract entered into by Ohio Power and 

Peabody in 1992. Under the terms of the settlement agreement, Ohio Power was 

to continue to receive coal from Peabody at the 1992 contract price—which was 

significantly below market at the time of the settlement—through the end of 2008. 

The Audit Report determined that absent the buyout of the contract, shipments of 
SUPREME COURT OF OHIO

12 

coal would have continued at the below-market contract price through the ESP 

period. According to the audit, the early termination of the Peabody contract at 

the end of 2008 forced Ohio Power to purchase replacement coal at market prices 

beginning in 2009. This evidence affirmatively supports what the commission 

found: that the 2008 settlement agreement increased the cost of fuel that Ohio 

Power used to provide electricity in 2009, thereby justifying the decision to apply 

proceeds from the agreement to offset 2009 fuel costs. But the 2008 settlement 

agreement did not affect 2008 fuel costs under the RSP since under the terms of 

the settlement, Ohio Power was to continue to pay the same price for fuel under 

the Peabody contract until the contract terminated at the end of 2008.4

{¶ 33} Ohio Power bears the burden as the appellant to show that the 

commission’s decision is against the manifest weight of the evidence or is clearly 

unsupported by the record. AK Steel Corp. v. Pub. Util. Comm., 95 Ohio St.3d 

81, 86, 765 N.E.2d 862 (2002). In the end, Ohio Power has pointed to nothing in 

the record that rates or fuel costs under the RSP were affected by the 

commission’s order. Ohio Power cannot expect the court simply to take counsel’s 

word on questions of fact, but that is what its merit brief effectively does. 

B. Ohio Power’s regulatory-accounting argument 

also lacks record support 

{¶ 34} Ohio Power’s retroactive-ratemaking argument also hinges, in part, 

on its claim that the company had booked the 2008 settlement agreement under 

proper regulatory accounting principles.5

 Ohio Power asserts that the true cost of 

 

4

 Ohio Power subsequently agreed to release Peabody from delivering coal under the 1992 

contract for the remainder of 2008. Under this buyout—referred to as the delivery-shortfall 

agreement—Ohio Power received a cash payment in return for terminating Peabody’s remaining 

obligations under the 1992 contact. Audit Report at 2-21. The commission did not order Ohio 

Power to credit any of the proceeds from the delivery-shortfall agreement to customers during the 

2009 audit. 

5

 Ohio Power also argues that there was no evidence to rebut the presumption that 2009 fuel costs 

were prudently incurred. Any arguments regarding the prudence review of Ohio Power’s fuel 
January Term, 2014 

13 

fuel incurred to provide power is measured by the amounts recorded on Ohio 

Power’s books of account. Ohio Power maintains that the evidence confirms that 

the 2008 settlement agreement was properly booked in 2008 and 2009 to offset 

fuel costs incurred in those years. Ohio Power therefore contends that the 

commission had no legal or record basis to retroactively seize the settlement 

proceeds. These arguments lack merit for the following reasons. 

{¶ 35} First, Ohio Power ignores that “the commission has express 

statutory authority under R.C. 4905.13 to prescribe the manner in which a utility 

must keep its books of account.” Consumers’ Counsel v. Pub. Util. Comm., 4 

Ohio St.3d 111, 115, 447 N.E.2d 749 (1983). That is, the commission determines 

whether revenues and expenses are properly booked, not the utility. 

{¶ 36} Second, Ohio Power has again failed to marshal any evidence in its 

first merit brief to support its appellate arguments. Ohio Power’s failure to offer 

relevant citations to the record to support its appellate arguments is a fatal flaw. 

Allnet Communications Serv., Inc. v. Pub. Util. Comm., 70 Ohio St.3d 202, 206, 

638 N.E.2d 516 (1994) (rejecting argument where appellant provided no “record 

citations to support” it); State ex rel. Davis v. Pub. Emps. Retirement Bd., 120 

Ohio St.3d 386, 2008-Ohio-6254, 899 N.E.2d 975, ¶ 40; State ex rel. Physicians 

Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio 

St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶ 13, quoting Day v. N. Indiana Pub. 

Serv. Corp, 164 F.3d 382, 384 (7th Cir.1999) (“Appellate attorneys should not 

expect the court to ‘peruse the record without the help of pinpoint citations’ to the 

record”). 

 purchases miss the mark because the prudence of Ohio Power’s fuel transactions had no bearing 

on the commission’s determination. 
SUPREME COURT OF OHIO

14 

{¶ 37} Ohio Power does offer evidence and additional arguments to 

support this claim in its reply brief.6 Ohio Power, however, is barred from raising 

new arguments and offering evidence for the first time on reply. See Util. Serv. 

Partners, Inc. v. Pub. Util. Comm., 124 Ohio St.3d 284, 2009-Ohio-6764, 921 

N.E.2d 1038, ¶ 54. 

{¶ 38} For the foregoing reasons, we reject Ohio Power’s retroactiveratemaking argument. 

C. Ohio Power failed to develop its argument on 

retroactive application of the law

{¶ 39} Ohio Power also contends in support of the first proposition of law 

that the approach taken by the commission in its opinion and order “amounts to 

the retroactive application of SB 221 in violation of the Ohio Constitution and 

Ohio Revised Code.” See Article II, Section 28 of the Ohio Constitution (“The 

general assembly shall have no power to pass retroactive laws * * * ”) and R.C. 

1.48 (statutes are presumed to apply only prospectively unless specifically made 

retroactive). According to Ohio Power, the FAC cannot be applied retroactively 

to encompass transactions occurring in 2008 because (1) the FAC did not become 

effective under SB 221 until 2009 and (2) fuel costs under the RSP were not 

regulated in 2008. 

{¶ 40} Ohio Power, however, fails to carry its burden here. At no point 

does Ohio Power cite a specific legal authority that prohibits the FAC from being 

applied to fuel transactions in 2008. Ohio Power makes general references to “SB 

221” and its effective date, but this alone does not prove that the commission 

lacked authority to apply the FAC to 2008 fuel transactions. 

 

6

 Specifically, Ohio Power claims that customers were made whole for 2009 fuel costs because it 

properly booked $13.3 million of the proceeds from the 2008 settlement agreement as a credit 

against fuel costs incurred in 2009 and 2010, with the remaining $58.3 million credited against 

2008 fuel expenses. 
January Term, 2014 

15 

{¶ 41} Moreover, to determine whether a statute may be retroactively 

applied, we first ask whether the General Assembly expressly made the statute 

retroactive. Hyle v. Porter, 117 Ohio St.3d 165, 2008-Ohio-542, 882 N.E.2d 899, 

¶ 8-10 (applying R.C. 1.48 and Article II, Section 28, Ohio Constitution as a twopart test to determine whether a statute may be applied retroactively). The FAC 

mechanism was authorized under R.C. 4928.143(B)(2)(a). Yet Ohio Power does 

not cite this provision, let alone offer an argument as to its construction. Ohio 

Power cannot expect to prevail on a claim of retroactive application of law when 

it does not even identify the law at issue. 

{¶ 42} A party who challenges a final order of the commission has the 

burden on appeal under R.C. 4903.13 of showing that the order is unlawful or 

unreasonable. AT&T Communications of Ohio, Inc. v. Pub. Util. Comm., 51 Ohio 

St.3d 150, 154, 555 N.E.2d 288 (1990); Columbus v. Pub. Util. Comm., 170 Ohio 

St. 105, 163 N.E.2d 167 (1959), paragraph two of the syllabus. Ohio Power’s 

argument is inadequately developed, and we reject it on that basis. See In re 

Application of Columbus S. Power Co., 128 Ohio St.3d 512, 2011-Ohio-1788, 

947 N.E.2d 655, ¶ 56-57. 

D. Ohio Power has forfeited the alternative argument 

raised in the first proposition of law 

{¶ 43} Ohio Power’s first proposition of law contains an alternative 

argument to its retroactive-ratemaking claim. Ohio Power asserts that the 

commission’s order is arbitrary, unreasonable, and against the manifest weight of 

the evidence because it singles out the 2008 settlement agreement to reduce its 

2009 fuel-cost recovery while ignoring another 2008 agreement with a different 

coal supplier that allowed Ohio Power to avoid paying higher fuel costs in 2008 

and beyond. Ohio Power refers to this other agreement as the 2008 Production 

Bonus Agreement. Under that agreement, Ohio Power paid the supplier a 

production bonus of $28.6 million to ensure that the supplier remained in business 
SUPREME COURT OF OHIO

16 

and was able to continue to supply coal to Ohio Power at below-market contract 

prices. Ohio Power would like to recover the $28.6 million through 2009 FAC 

rates on the theory that customers paid less in 2009 fuel costs than they would 

have if the supplier had defaulted on the supply contracts. 

{¶ 44} Ohio Power did not seek to recover the $28.6 million production 

bonus until it filed an application for rehearing on the commission’s order on 

February 23, 2012. In its April 11, 2012 rehearing entry, the commission refused 

to consider the impact of the production bonus agreement against 2009 fuel costs. 

Before this court, Ohio Power now claims that the commission failed to provide 

record support and a valid rationale for its decision on rehearing. 

{¶ 45} It is true that the commission must explain its decisions. R.C. 

4903.09 requires the commission to set forth the reasons supporting the decisions 

arrived at and prohibits summary rulings and conclusions that do not develop the 

supporting rationale or record. MCI Telecommunications Corp. v. Pub. Util. 

Comm., 32 Ohio St.3d 306, 312, 513 N.E.2d 337 (1987). See also Indus. Energy 

Users–Ohio v. Pub. Util. Comm., 117 Ohio St.3d 486, 2008-Ohio-990, 885 

N.E.2d 195, ¶ 30. But the critical problem for Ohio Power is that it never filed a 

second application for rehearing alleging error in the commission’s evidence and 

analysis in the first entry on rehearing. R.C. 4903.10 requires the commission’s 

ruling on any particular issue to be challenged through an application for 

rehearing before that issue can be appealed. Ohio Power cannot argue for the first 

time in this court that the commission’s rehearing entry lacked adequate record 

support and reasoning. It must first raise the issue with the commission, giving 

the commission an opportunity to correct the alleged errors. See Parma v. Pub. 

Util. Comm., 86 Ohio St.3d 144, 148, 712 N.E.2d 724 (1999) (we do not accept 

objections when appellant has “deprived the commission of an opportunity to 

redress any injury or prejudice that may have occurred”). Because Ohio Power 

did not file a second application that sought rehearing on these grounds, we lack 
January Term, 2014 

17 

jurisdiction to consider the arguments now. Discount Cellular, Inc. v. Pub. Util. 

Comm., 112 Ohio St.3d 360, 2007-Ohio-53, 859 N.E.2d 957, ¶ 66 (failure to file a 

second rehearing application challenging new grounds in first rehearing entry 

jurisdictionally bars this court’s review). 

II. Ohio Power’s Proposition of Law No. II: The commission’s 

decision to apply the book value of the coal reserve to 

offset 2009 fuel costs is unlawful and unreasonable

{¶ 46} In proposition of law No. II, Ohio Power claims that the 

commission erred when it applied the book value of the coal reserve (a 

component of the 2008 settlement agreement) to offset 2009 fuel costs. Ohio 

Power offers two separate arguments, but has forfeited both. 

A. Ohio Power has forfeited its claim that ratepayers have no entitlement to 

the value of the coal reserve acquired in the 2008 settlement agreement 

{¶ 47} Ohio Power first claims that there is no legal basis for the 

commission to apply the value of the coal reserve against 2009 fuel costs. 

According to Ohio Power, ratepayers have no valid claim to the value of the coal 

reserve because the commission has long held that ratepayers have no ownership 

interest in utility assets. 

{¶ 48} The commission first addressed Ohio Power’s ownership argument 

on rehearing. In its April 11, 2012 rehearing entry, the commission agreed with 

Ohio Power that ratepayers had no ownership interest in the coal reserve. The 

commission went on to explain that an ownership interest in utility assets “is not 

necessary for the Commission to order, as it did in the FAC order, the alignment 

of fuel costs with the benefits of AEP-Ohio’s fuel contracts.” 

{¶ 49} Ohio Power now inexplicably argues that the commission “gave 

scant reason for rejecting its long-held” precedent “that ratepayers do not have an 

ownership [interest] in utility assets.” But Ohio Power never argued on rehearing 

that the commission erred in failing to follow precedent. That failure 
SUPREME COURT OF OHIO

18 

jurisdictionally bars the court from considering the claim. See R.C. 4903.10; 

Consumers’ Counsel v. Pub. Util. Comm., 70 Ohio St.3d 244, 247, 638 N.E.2d 

550 (1994) (“setting forth specific grounds for rehearing is a jurisdictional 

prerequisite for our review”).7

{¶ 50} Apparently recognizing the futility of continuing to argue that the 

commission failed to follow precedent, Ohio Power changes course and asserts 

that “[n]o fair label can be given to that transaction [offsetting 2009 fuel costs 

with the value of the coal reserve] other than a transfer of ownership.” Although 

it is not entirely clear, Ohio Power’s point seems to be that the commission in 

effect transferred ownership of the coal reserve from Ohio Power to ratepayers 

when it credited the coal reserve value against 2009 fuel costs, and the 

commission erred in failing to recognize its order in those terms. 

{¶ 51} As noted, the commission first addressed the ownership issue in the 

first rehearing entry. Ohio Power has forfeited this claim as well by failing to 

present it to the commission in a second application for rehearing. We therefore 

lack jurisdiction over this claim. Discount Cellular, Inc. v. Pub. Util. Comm., 112 

Ohio St.3d 360, 2007-Ohio-53, 859 N.E.2d 957, ¶ 66. 

B. Ohio Power has also forfeited its claim that the record 

did not support the valuation 

{¶ 52} Ohio Power’s second argument is that the record does not support 

the $41 million valuation given to the coal reserve. Ohio Power, however, failed 

to include this argument in its notice of appeal. R.C. 4903.13 establishes that the 

procedure to seek reversal of a commission order is through a notice of appeal 

“setting forth the order appealed from and the errors complained of.” We lack 

jurisdiction to consider arguments not included in a notice of appeal. Cincinnati 

 

7

 Even if the issue had been preserved for appeal, Ohio Power has not demonstrated error. As we 

explained, the commission never rejected this precedent; rather it agreed with Ohio Power’s 

position that ratepayers had no ownership interest in utility assets. 
January Term, 2014 

19 

Gas & Elec. Co. v. Pub. Util. Comm., 103 Ohio St.3d 398, 2004-Ohio-5466, 816 

N.E.2d 238, ¶ 21; Ohio Partners for Affordable Energy v. Pub. Util. Comm., 115 

Ohio St.3d 208, 2007-Ohio-4790, 874 N.E.2d 764, ¶ 16. 

III. Ohio Power’s Proposition of Law No. III: The commission 

lacks jurisdiction to modify its prior adjudicative decisions and 

may exercise continuing jurisdiction only to enforce final orders

{¶ 53} Ohio Power claims in its final proposition of law that the 

commission was barred by the doctrines of res judicata and collateral estoppel 

from revisiting issues in the FAC proceedings that were decided in the first ESP 

proceedings. “These doctrines operate to preclude the relitigation of a point of 

law or fact that was at issue in a former action between the same parties and was 

passed upon by a court of competent jurisdiction.” Consumers’ Counsel v. Pub. 

Util. Comm., 16 Ohio St.3d 9, 10, 475 N.E.2d 782 (1985). And these doctrines 

apply to quasi-judicial administrative proceedings. State ex rel. Schachter v. Ohio 

Pub. Emps. Retirement Bd., 121 Ohio St.3d 526, 2009-Ohio-1704, 905 N.E.2d 

1210 ¶ 29; Superior’s Brand Meats, Inc. v. Lindley, 62 Ohio St.2d 133, 403 

N.E.2d 996 (1980). 

A. Ohio Power has not shown that the FAC Order modified the 2009 FAC 

audit period or applied the FAC to fuel costs incurred outside the ESP period 

{¶ 54} Ohio Power asserts that the commission’s FAC Order modified two 

key issues that were decided in the first ESP case: (1) the FAC mechanism would 

be limited to the ESP period (2009 through 2011) and (2) the 2009 FAC audit 

proceeding was limited to a review of fuel costs that were incurred from January 

1, 2009, through December 31, 2009. According to Ohio Power, the commission 

modified these components of the ESP Order when it reviewed fuel procurement 

activities outside the specific audit period under review and outside the ESP term. 

{¶ 55} The commission found that it had not altered the scope of the audit 

or the audit period under review in this case. The commission specifically 
SUPREME COURT OF OHIO

20 

rejected Ohio Power’s contention that the ESP Order limited its annual review of 

the FAC to 2009 procurement activities. After review, we find that Ohio Power 

has not shown that the commission relitigated any point of law or fact in this case 

that was decided in the ESP proceedings. 

{¶ 56} First, Ohio Power contends that the commission failed to follow its 

“prior adjudicatory decision” in the ESP Order regarding the ESP period and 

annual audit review period. Ohio Power cites the ESP Order and testimony from 

the ESP proceedings to support its claim that the audit and ESP periods were 

altered by the FAC Order. But none of these references expressly limit the 

commission’s FAC audit to procurement activities occurring only during the ESP 

period. 

{¶ 57} Second, Ohio Power’s arguments fail to undermine the 

commission’s rationale for finding that the 2008 settlement agreement was subject 

to review. The FAC audit was designed to examine the prudence and accounting 

accuracy of Ohio Power’s fuel transactions. The purpose of the FAC audit was to 

determine the true costs of fuel so that customers paid no more than what was 

reasonable. The commission recognized that the 2008 settlement agreement was 

executed before the audit period under review and the start of the ESP. Even so, 

the commission found it subject to review because the proceeds received from the 

agreement affected Ohio Power’s costs to provide electricity during 2009. 

{¶ 58} The critical flaw in Ohio Power’s arguments is that it wants the 

commission (and now this court) to consider the 2008 settlement agreement in 

isolation, looking solely at the date it was executed and not at whether the 

agreement had any effect on 2009 fuel costs. Under the terms of the agreement, 

Ohio Power agreed to terminate prematurely the long-term Peabody coal-supply 

contract at the end of 2008. Without this early buyout of this contract, Ohio 

Power would have continued to receive shipments of coal at the below-market 

contract price through the ESP period (2009-2011). And because the Peabody 
January Term, 2014 

21 

contract terminated at the end of 2008, Ohio Power had to purchase replacement 

coal beginning in 2009 at higher prices, which in turn resulted in ratepayers 

paying more for electricity at the beginning of the ESP period. In short, Ohio 

Power ignores the impact of the settlement agreement on 2009 FAC costs. 

B. Ohio Power has not shown that the FAC baseline 

was altered by the FAC Order 

{¶ 59} Ohio Power also asserts that the commission modified the FAC 

baseline when it applied proceeds from the 2008 settlement agreement against 

2009 FAC costs. While we find no merit to this claim, resolving it requires an 

understanding of the FAC baseline. 

1. Background on the FAC Baseline 

{¶ 60} As noted above, the FAC is a separate charge from the base rate 

that will automatically go up and down with the cost of fuel. In order to 

determine whether fuel costs had gone up beyond the amount already recovered in 

the base rate, it was necessary to set a baseline. The base rate was to include 2009 

fuel costs, but the ESP hearing ended in 2008 and the actual 2009 costs were not 

known at that time. So the commission needed to estimate. IEU had proposed 

reopening the record to use 2008 costs as a proxy for 2009. AEP had proposed a 

different estimation method altogether. The commission, following the staff’s 

recommendation, chose 2007 fuel costs as the FAC baseline. 

{¶ 61} The setting of the FAC baseline also had an impact on setting the 

base generation rate of the ESP. The ESP separated Ohio Power’s bundled 

generation rate under the RSP into the FAC and non-FAC components. The nonFAC components were determined by subtracting the FAC baseline from the total 

generation rate. This meant that if the FAC baseline were set low, the base 

portion of the generation rate (the non-FAC portion) would be higher, and vice 

versa. The FAC baseline adopted by the commission was lower than the baseline 

advocated by IEU, resulting in a higher non-FAC generation rate. 
SUPREME COURT OF OHIO

22 

2. Ohio Power has not carried its burden of demonstrating error

{¶ 62} Ohio Power’s theory is that when the commission applied the 

proceeds from the 2008 settlement agreement against the 2009 FAC costs, it 

modified the FAC baseline to a higher value, and thereby reduced “2009 fuel 

adjustment clause-related increase in rates.” Although Ohio Power’s brief is not 

entirely clear, Ohio Power is apparently claiming that the decision to reduce the 

recovery of FAC costs for 2009 by the amount of the 2008 settlement proceeds 

also reduced Ohio Power’s non-FAC generation rate recovery. 

{¶ 63} Ohio Power, however, offers no evidence to support its theory that 

the FAC Order had an impact on the base generation rate set by the ESP Order. 

And Ohio Power does not even assert, much less demonstrate, that its base 

generation rate under the ESP was insufficient to cover its non-FAC costs. Ohio 

Power’s failure to support its appellate arguments with relevant citations to the 

record is alone grounds to reject it. Allnet Communications Serv., Inc. v. Pub. 

Util. Comm., 70 Ohio St.3d 202, 206, 638 N.E.2d 516 (1994) (rejecting argument 

when appellant “provided no further reasoning or record citations to support” it). 

{¶ 64} In the end, Ohio Power has not demonstrated that the commission 

violated the doctrines of res judicata or collateral estoppel. Therefore, we reject 

proposition of law No. III. 

IEU’s Cross-Appeal 

IEU Proposition of Law No. IV: The commission’s FAC Order is unlawful 

and unreasonable because on rehearing, the commission failed to allocate 100 

percent of the credit for the buyout to Ohio retail jurisdictional customers

{¶ 65} IEU argues on cross-appeal that the commission erred on rehearing 

when it reduced the amount of the settlement proceeds to be credited against Ohio 

Power’s underrecovered FAC costs. The commission found that only the portion 

of the settlement proceeds allocable to Ohio retail jurisdictional customers should 

be credited against the 2009 FAC costs. IEU maintains that the commission’s 
January Term, 2014 

23 

decision is unlawful and unreasonable on three grounds: (1) the commission’s 

rehearing entries—dated April 11, 2012, and July 2, 2012—are not supported by 

the record, (2) the July 2 rehearing entry is contradicted by the record, and (3) the 

July 2 entry conflicts with Ohio Adm.Code 4901:1-35-03(C)(9)(a)(ii). 

{¶ 66} We agree with IEU that the commission failed to cite any evidence 

in these rehearing entries, in violation of R.C. 4903.09. See Tongren v. Pub. Util. 

Comm., 85 Ohio St.3d 87, 89, 706 N.E.2d 1255 (1999) (strict compliance with 

R.C. 4903.09 is not required, but the commission abuses its discretion if it renders 

an opinion on an issue without record support). IEU, however, has forfeited these 

arguments by failing to preserve them on rehearing. 

A. The April 11, 2012 Rehearing Entry 

{¶ 67} The commission’s opinion and order determined that all of the 

proceeds from the 2008 settlement agreement should be used to offset the higher 

fuel costs charged to ratepayers in 2009. Ohio Power filed an application for 

rehearing, arguing that the order overstated the amount of the offset because only 

a portion of the settlement proceeds should have been allocated to Ohio retail 

customers. 

{¶ 68} On rehearing, the commission agreed. The commission found that 

Ohio Power’s fuel expenses are allocated between Ohio retail expenses, non-Ohio 

retail expenses, and wholesale expenses. The commission found that the same 

was true with regard to the allocation of revenues. Therefore, the commission 

clarified that only the share of the settlement proceeds allocable to Ohio retail 

customers must be credited against 2009 fuel costs. 

{¶ 69} On cross-appeal, IEU argues that the commission failed to identify 

any evidence in its April 11 entry to support this conclusion. IEU, however, did 

not argue in its May 11, 2012 application for rehearing that the commission failed 

to support its order with record evidence. Setting forth specific grounds for 

rehearing is a jurisdictional prerequisite for this court’s review. Ohio Partners for 
SUPREME COURT OF OHIO

24 

Affordable Energy v. Pub. Util. Comm., 115 Ohio St.3d 208, 2007-Ohio-4790, 

874 N.E.2d 764, ¶ 15. 

{¶ 70} IEU counters that it preserved this issue with the following 

statement: “OP has failed to provide any proof that Ohio consumers should be 

deprived of the full amount of the benefits received by OP in exchange for the 

higher costs of fuel paid by Ohio customers.” But claiming that Ohio Power 

failed to provide proof to support an argument is not the same thing as claiming 

that the commission failed to identify record evidence to support its order. And 

even if this statement were sufficient to preserve the issue for review, none of the 

arguments or evidence in IEU’s brief on this issue was set forth in its rehearing 

application. “[W]hen an appellant’s grounds for rehearing fail to specifically 

allege in what respect the PUCO’s order was unreasonable or unlawful, the 

requirements of R.C. 4903.10 have not been met.” Discount Cellular, 112 Ohio 

St.3d 360, 2007-Ohio-53, 859 N.E.2d 957, ¶ 59 (cases cited). Indeed, we have 

strictly construed the specificity test set forth in R.C. 4903.10. Id. See also 

Cincinnati v. Pub. Util. Comm., 151 Ohio St. 353, 378, 86 N.E.2d 10 (1949) (by 

using the language set forth in R.C. 4903.10, “the General Assembly indicated 

clearly its intention to deny the right to raise a question on appeal where the 

appellant’s application for rehearing used a shotgun instead of a rifle to hit that 

question”). So regardless of what appears in IEU’s brief on cross-appeal, the only 

arguments properly before the court are those also set forth in IEU’s application 

for rehearing in the case below. 

B. The July 2, 2012 Rehearing Entry 

{¶ 71} The commission rejected IEU’s May 11 rehearing application in an 

entry dated July 2, 2012. IEU asserts on cross-appeal that the commission failed 

to identify any evidence to support this entry. But IEU never filed an application 

for rehearing that alleged that the July 2 entry lacked record evidence. That 

means that IEU never sought rehearing on these grounds, so the court lacks 
January Term, 2014 

25 

jurisdiction to consider the arguments now. Ohio Partners for Affordable Energy 

v. Pub. Util. Comm., 115 Ohio St.3d 208, 2007-Ohio-4790, 874 N.E.2d 764, ¶ 15; 

In re Application of Am. Transm. Sys., Inc., 125 Ohio St.3d 333, 2010-Ohio-1841, 

928 N.E.2d 427, ¶ 31. 

{¶ 72} In addition to claiming that the commission failed to support its 

rehearing entry with record evidence, IEU argues that the record contradicts the 

commission’s determination. IEU refers here to the commission’s rejection of 

IEU’s least-cost-allocation claim. IEU had argued in its May 11 rehearing 

application that the Peabody contract was the “lowest cost fuel source.” Because 

the ESP required Ohio Power to allocate the least costly fuel to its standardservice-offer customers, IEU argued that Ohio Power was required to allocate all 

of the settlement proceeds from the buyout of the Peabody contract to these 

customers. The commission rejected IEU’s claim, finding that the allocation of 

fuel on a least-cost basis was determined by the average dispatch cost associated 

with a specific generation plant, rather than on any one particular supply contract, 

as IEU alleged. 

{¶ 73} On cross-appeal, IEU abandons its argument that the Peabody 

contract was the “lowest cost fuel source,” in favor of an entirely new argument. 

IEU’s new theory is that the electricity produced at the Mitchell generating station 

would have been the least-cost-generating output in Ohio Power’s fleet if the 

settlement agreement had not occurred. According to IEU, if the coal from the 

Peabody contract had been burned at the Mitchell plant, then all proceeds to buy 

out that contract should have been allocated to Ohio Power’s standard-serviceoffer customers. But in addition to being speculative and supported by evidence 

outside the record, IEU’s Mitchell theory was not presented to the commission on 

rehearing. Therefore, IEU has forfeited this claim. 
SUPREME COURT OF OHIO

26 

{¶ 74} Finally, IEU argues that the commission’s July 2 rehearing entry 

conflicts with OhioAdm.Code 4901:1-35-03(C)(9)(a)(ii). IEU has also forfeited 

this claim by failing to present it to the commission on rehearing. 

CONCLUSION

{¶ 75} In sum, Ohio Power and IEU have not carried their burden of 

showing reversible error in the commission’s orders. R.C. 4903.13; AT&T 

Communications of Ohio, Inc. v. Pub. Util. Comm., 51 Ohio St.3d 150, 154, 555 

N.E.2d 288 (1990). Therefore, we affirm. 

Orders affirmed. 

PFEIFER, O’DONNELL, LANZINGER, and O’NEILL, JJ., concur. 

KENNEDY and FRENCH, JJ., concur in judgment only. 

____________________ 

 Steven T. Nourse and Matthew J. Satterwhite, and Porter, Wright, Morris 

& Arthur, Kathleen M. Trafford, and Daniel R. Conway, for appellant and crossappellee, Ohio Power Company. 

 Mike DeWine, Attorney General, William L. Wright, Thomas W. 

McNamee, and Devin D. Parram, Assistant Attorneys General, for appellee and 

cross-appellee, Public Utilities Commission of Ohio. 

 McNees, Wallace & Nurick, Samuel C. Randazzo, Frank P. Darr, and 

Matthew R. Pritchard, for appellee and cross-appellant, Industrial Energy Users–

Ohio. 

_________________________