In re Application of Duke Energy Ohio, Inc. (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re Application of Duke Energy Ohio, Inc., Slip Opinion No. 2021-Ohio-3301.]
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. 2021-OHIO-3301IN RE APPLICATION OF DUKE ENERGY OHIO, INC., FOR A CERTIFICATE OF
ENVIRONMENTAL COMPATIBILITY AND PUBLIC NEED FOR THE C314V
CENTRAL CORRIDOR PIPELINE EXTENSION PROJECT; WALTZ, CITY MGR., ET
AL., APPELLANTS; POWER SITING BOARD, APPELLEE; DUKE ENERGY OHIO,
INC., INTERVENING APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as In re Application of Duke Energy Ohio, Inc., Slip Opinion No.
2021-Ohio-3301.]
Power Siting Board—Natural-gas pipeline—R.C. 4906.10(A)—Certificate of
environmental compatibility and public need—Determination approving
construction, operation, and maintenance of a natural-gas pipeline was
lawful, reasonable, and not manifestly against the weight of the evidence—
Board did not misapply the statutory criteria, decide the issue on incomplete
information, misweigh the evidence, or limit any parties’ ability to
meaningfully participate.
(No. 2020-0511—Submitted March 31, 2021—Decided September 22, 2021.)
APPEAL from the Power Siting Board, No. 16-0253-GA-BTX.
SUPREME COURT OF OHIO
_________________
STEWART, J.
{¶ 1} Appellants, the city of Reading and its safety-service director, Patrick
Ross (“Reading”); the city manager for the city of Blue Ash, David Waltz (“Blue
Ash”); and Neighbors Opposed to Pipeline Extension, L.L.C. (“NOPE”), appeal an
order of appellee, Ohio Power Siting Board, granting a certificate of environmental
compatibility and public need to intervening appellee, Duke Energy Ohio, Inc., for
the construction, operation, and maintenance of a natural-gas pipeline in Hamilton
County. The appellants argue, among other things, that the board misapplied the
statutory criteria governing certificate approval, decided the case on incomplete
information, misweighed the evidence, and limited their ability to meaningfully
participate. We disagree and affirm.
I. FACTUAL BACKGROUND
{¶ 2} In March 2016, Duke notified the board that it would soon be applying
for a certificate of environmental compatibility and public need to construct a
natural-gas pipeline. Duke filed the application about five months later, stating that
it had decided to reduce the pipeline’s proposed diameter from 30 to 20 inches and
its proposed operating pressure from 600 to 400 pounds per square inch gauge.
{¶ 3} Duke refiled and amended the application in January 2017, stating
that the pipeline formed part of its “long-term planning process to retire propane-
air plants, balance system supply from north to south, and support the replacement
of aging infrastructure.” To this end, Duke proposed two routes for the pipeline: a
preferred route and an alternate route. Both routes would start at a point near the
intersection of Hamilton, Warren, and Butler Counties and run approximately 13 to
14 miles in a mostly north-to-south direction through Hamilton County. The
preferred route would end in Fairfax; the alternate route in Norwood.
{¶ 4} The board notified Duke in March 2017 that the application had been
certified as sufficiently complete. In May 2017, the board’s staff filed its
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investigatory report on the proposal, recommending that the board grant a
certificate for the alternate route because, among other things, that route presented
fewer adverse effects on the project area.
{¶ 5} In August 2017, Duke filed a motion to stay the proceedings,
explaining that it needed additional time to investigate concerns associated with
specific sites along the alternate route. The board granted the motion.
{¶ 6} In April 2018, Duke asked the board to reestablish the proceedings
(the board later did so) and filed a six-part supplement to the application. Duke
explained that prior to the time the staff had filed its report recommending the
alternate route, its focus had been on the preferred route, for which the design was
partially complete and soil borings, utility locations, and surveying had been
significantly completed. Duke took additional time during the stay to investigate
the alternate route and meet with stakeholders, which led it to modify the alternate
route’s path to reduce the impact of construction on affected municipalities and
businesses. Minor alignment changes, Duke said, would continue to be
implemented as the engineering design progressed.
{¶ 7} Duke provided supplemental reports in July 2018, one addressing a
Superfund site and the other addressing environmental risks associated with
specific properties.
{¶ 8} In March 2019, the staff filed an amended investigatory report that
replaced and superseded its May 2017 report. The amended report accounted for
Duke’s supplemental information and reports and, as before, recommended that the
board consider the alternate route, subject to conditions.
{¶ 9} In November 2019, after a three-day evidentiary hearing, the board
issued a lengthy order in which it determined that the proposed pipeline met the
criteria of R.C. 4906.10(A) and granted Duke a certificate for the construction,
operation, and maintenance of the pipeline along the alternate route, subject to 41
conditions. Several parties sought rehearing of the board’s order, which the board
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denied. Reading, Blue Ash, NOPE, and the village of Evendale then filed this
appeal.
{¶ 10} During the appeal’s pendency, we denied a motion to stay the
board’s order, 159 Ohio St.3d 1413, 2020-Ohio-3275, 147 N.E.3d 654, and
dismissed Evendale’s assignments of error and sua sponte dismissed Evendale as a
party, 159 Ohio St.3d 1467, 2020-Ohio-3884, 150 N.E.3d 120.
II. STANDARD OF REVIEW
{¶ 11} We apply the same standard of review to a board order that we would
apply to an order of the Public Utilities Commission of Ohio (“PUCO”). See In re
Application of Black Fork Wind Energy, L.L.C., 138 Ohio St.3d 43, 2013-Ohio-
5478, 3 N.E.3d 173, ¶ 10, citing R.C. 4906.12. Under this standard, we will reverse,
vacate, or modify a board order “if, upon consideration of the record, [we are] of
the opinion that such order was unlawful or unreasonable.” R.C. 4903.13. We
“will not reverse or modify a board decision as to questions of fact when the record
contains sufficient probative evidence to show that the board’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.”
In re Application of Champaign Wind, L.L.C., 146 Ohio St.3d 489, 2016-Ohio-
1513, 58 N.E.3d 1142, ¶ 7. Our review of legal questions is de novo. Id.III. ANALYSIS
A. Whether Duke provided adequate information about the pipeline (Reading
proposition of law No. 1; Blue Ash proposition of law No. 2)
1. Reading’s arguments
{¶ 12} Under Ohio law, an applicant for a gas-pipeline certificate must file
with the board’s chairperson “[s]uch * * * information * * * as the board by rule or
order may require.” R.C. 4906.06(A)(6). By rule, the application “shall include
fully developed information on two * * * routes,” one designated as a “preferred”
route and the other as an “alternate” route. Ohio Adm.Code 4906-3-05. Each route
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“shall be a viable alternative on which the applicant could construct the proposed
facility.” Id. Within 60 days of receiving the application, the chairman shall either
accept it as complete and in compliance with R.C. 4906.06 and the board’s rules or
reject it as incomplete with a statement explaining the basis of the rejection. Ohio
Adm.Code 4906-3-06(A)(1) and (2).
{¶ 13} Reading argues that the board should have denied Duke’s
application because the alternate-route proposal was not accompanied by “fully
developed information” under Ohio Adm.Code 4906-3-05. Because Duke failed
to provide this information, Reading says, the board ran afoul of due process by
arbitrarily applying its rule. Reading points to Duke’s supplemental filings and
information, which it obtained in discovery, all of which postdate Duke’s March
2017 application. In particular, Reading points to a Superfund site, a report
showing that Duke had modified the alternate route to avoid impinging on a site
held for future development, and a report known as the Western Route
Constructability Review that shows construction challenges that Duke would incur
along some of Reading’s narrower roads. Reading also points to the amended staff
report of March 2019, which recounts Duke’s concession that “it had not evaluated
th[e] [alternate] route with the level of detail necessary to pursue its potential
construction,” and Duke’s additional investigation of the alternate route after the
staff issued its May 2017 report.
{¶ 14} The board’s decision all but concedes that Duke did not provide the
requisite information when it was supposed to. Its order cites the testimony of Gary
Hebbeler, vice president of Duke’s gas operations, who explained that Duke
initially focused on designing the preferred route but then shifted its focus to the
alternate route after receiving the staff’s May 2017 report. The board observed that
it “generally expects that an applicant will have fully investigated both of its
proposed routes and include ‘fully developed information’ on both routes in the
application.” Power Siting Bd. No. 16-0253-GA-BTX, ¶ 122 (Nov. 21, 2019). Yet,
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the board determined that Duke had provided the information required by R.C.
4906.06(A) and unspecified rules, that the staff had received the information
necessary to perform its investigation, that the intervenors had been afforded ample
opportunity to participate in the proceeding, and that the intervenors had access to
Duke’s information through discovery.
{¶ 15} Under the circumstances, it is hard to fault the logic of Reading’s
argument that Duke’s application lacked fully developed information on two routes
given that Duke had to request a pause in the proceedings to shore up and submit
supplemental information pertaining to the alternate route. The board responds
that, as the administrative law judge found, Duke’s supplemental information
satisfied Ohio Adm.Code 4906-3-11(A)’s provision allowing an applicant to
“submit to the board any applications for amendment to a pending accepted,
complete application.” But that rule speaks to amendments to the existence of a
“pending accepted, complete application”; the question here is whether the
application was complete before Duke supplemented it.
{¶ 16} Assuming without deciding that the board misapplied its filing
requirements, Reading was not harmed by the error. In In re Black Fork Wind
Energy, L.L.C., 156 Ohio St.3d 181, 2018-Ohio-5206, 124 N.E.3d 787, we
considered whether the board’s failure to comply with the procedural requirements
for amending a certificate had harmed the appellants, who had objected to the
issuance of the certificate, explaining that reversal would not lie without a showing
of harm. This court concluded that the appellants had been harmed in two ways.
First, the board’s actions deprived the appellants of a staff investigation and report,
which limited the appellants’ ability to make an informed challenge. Id. at ¶ 24.
Second, but for the board’s error, the appellants had shown a realistic possibility of
a different outcome, namely, the application of a change in law pertaining to wind-
turbine-setback requirements. Id. at ¶ 25.
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January Term, 2021
{¶ 17} In this case, unlike in In re Black Fork Wind Energy, Reading
received the benefit of not one, but two staff reports (the amended report came after
Duke provided its supplemental information). Moreover, Reading has not pointed
to a change in the law that might allow for a different outcome.
{¶ 18} Nor did Reading’s more particularized concerns go unnoticed.
Duke’s supplemental information, the staff’s amended report, and the board’s order
discuss the Superfund site at length. Moreover, the board adopted a condition
requiring that Duke avoid damaging or interfering with the site and its related
components.
{¶ 19} Turning to the future-development site, Duke’s supplemental
information, the staff’s amended report, and the board’s order all show that Duke
adjusted the alternate route by moving the pipeline to the edge of the site.
{¶ 20} We recognize that there is some dispute whether Duke apprised the
staff of information concerning the road-construction challenges, but the fact
remains that Reading was able to—and did—raise this concern to the board. And
in response to Reading’s concern that construction activities would possibly
deprive residents of their homes, the board adopted a condition requiring use of
“construction techniques that will ensure that access to residences remains available
throughout construction.” Power Siting Bd. No. 16-0253-GA-BTX at ¶ 190,
Condition 30 (Nov. 21, 2019).
{¶ 21} Last, although Reading claims that the staff was not likely to modify
its alternate-route recommendation after issuing its reports, Reading was not
foreclosed from attempting to dissuade the board from adopting the alternate route.
2. Blue Ash’s arguments
{¶ 22} Blue Ash offers a variation on Reading’s argument that Duke did not
provide fully developed information. Blue Ash claims that it was “provided so little
information that [it could not] meaningfully participate in the routing and hearing
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process.” It also goes so far as to say that it was not “given enough information to
even know what the issues were.”
{¶ 23} The argument is meritless. Blue Ash had full access to the board’s
docket in this case, which included, among other things,
 Duke’s seven-part application seeking board approval to install the
proposed pipeline, which Duke supplemented with additional information
throughout the application’s pendency;
 the staff’s 72-page amended report addressing Duke’s proposal; and
 testimony filed by Duke and the staff in advance of the evidentiary hearing.
{¶ 24} Additionally, Gordon Perry, Blue Ash’s public-works director,
testified that he was familiar with Duke’s application, the staff’s report, the project
and its impact on Blue Ash, and the preferred and alternate routes. He further
testified that he attended Duke’s public-information sessions, where he “met with
Duke’s public information personnel and talked about maintenance operations, the
pipeline layout, and the construction process in general.” In short, Blue Ash had a
firm understanding about this case.
{¶ 25} It is true, as Blue Ash observes, that an information asymmetry will
often exist between a utility and the utility’s opponent. See In re Application of
Am. Transm. Sys., Inc., 125 Ohio St.3d 333, 2010-Ohio-1841, 928 N.E.2d 427,
¶ 41 (Pfeifer, J., concurring) (“Any utility involved in a siting decision will
invariably be better organized and able to devote more resources advocating its
preferred route than any group opposing the utility”). But this does not mean that
Blue Ash lacked the means to make its case. Blue Ash had the right to participate
in discovery, take depositions, file motions to compel, and serve subpoenas. See
Ohio Adm.Code 4906-2-14 (discovery); Ohio Adm.Code 4906-2-18 (depositions);
Ohio Adm.Code 4906-2-22 (motions to compel); Ohio Adm.Code 4906-2-23
(subpoenas).
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{¶ 26} Blue Ash next complains that Duke violated 49 C.F.R. 192.615 by
failing to identify individuals who could educate and assist fire and police
departments, emergency responders, and local officials about safety issues and
evacuation and emergency-planning procedures. But, as the board concluded, Blue
Ash fails to locate that federal regulation within an Ohio statute or board rule that
applies to a certificate proceeding. In any event, as the board stated, Duke’s
compliance with federal regulations will be addressed in a future safety inspection
by the PUCO.
{¶ 27} Blue Ash’s argument runs into a further obstacle. Condition 40 of
the board’s order requires Duke to
provide the fire and police departments, emergency responders, and
local officials in the affected local jurisdictions contact information
for at least two employees of [Duke] that are knowledgeable about
gas pipeline safety and that can educate and assist, as needed, local
officials, businesses, schools, and the community on gas pipeline
safety issues, including evacuation and emergency response
planning.
Power Siting Bd. No. 16-0253-GA-BTX at ¶ 107, Condition 40 (Nov. 21, 2019).
{¶ 28} And while precertification consultations might be preferable to
avoid potential conflicts, Blue Ash concedes that after the board granted the
certificate, Duke has provided the names of knowledgeable contact persons within
the company and has established a public-information program.
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B. Whether the board erred in determining that Duke’s proposal met the
conditions of R.C. 4906.10(A)(1) (NOPE proposition of law No. 1)
1. Whether the board misinterpreted R.C. 4906.10(A)(1)
{¶ 29} Under R.C. 4906.10(A)(1), the board must “find[] and determine[]”
“[t]he basis of the need for the facility.” NOPE argues that the board misinterpreted
this provision by “merely accepting Duke Energy’s corporate desires as the basis
of need.” In NOPE’s view, the board should have considered the general public’s
need.
{¶ 30} The text of R.C. 4906.10(A)(1) is unambiguous. The board must
consider “need”—not, as NOPE urges, the “general public’s need.” Because
NOPE’s argument requires us to insert words the General Assembly did not use,
we reject it. See State v. Hughes, 86 Ohio St.3d 424, 427, 715 N.E.2d 540 (1999)
(“In construing a statute, we may not add or delete words”). This reading of
division (A)(1) gains added support from the language of R.C. 4906.10(A)(6),
which provides that the board shall find and determine that “the facility will serve
the public interest, convenience, and necessity.” (Emphasis added.) By requiring
the board to account for the “public” in division (A)(6) but not in division (A)(1),
we presume that the General Assembly intended for the board to apply a different
statutory analysis to each. See Metro. Securities Co. v. Warren State Bank, 117
Ohio St. 69, 76, 158 N.E. 81 (1927) (“Having used certain language in the one
instance and wholly different language in the other, it will rather be presumed that
different results were intended”). Indeed, the board came to this same conclusion,
explaining that the “interests of the general public are fully considered under the
public interest, convenience, and necessity criterion found in R.C. 4906.10(A)(6).”
Power Siting Bd. No. 16-0253-GA-BTX, Rehearing entry, at ¶ 35 (Feb. 20, 2020).
2. Whether the board misweighed the evidence under R.C. 4906.10(A)(1)
{¶ 31} NOPE next challenges several of the board’s evidentiary findings,
claiming that they are contradicted by other evidence in the record or lack record
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support. The board divided its findings into three categories. We address each in
turn.1
a. Propane-air facilities and storage caverns
{¶ 32} The first category pertains to Duke’s propane-air facilities and
storage caverns, which Duke brought online in the 1960s. The facilities consist of
boilers, vaporizers, pumps, and related equipment. The caverns consist of
limestone located 300 feet underground. The facilities draw propane from the
caverns, whereupon the propane combines with air for injection into Duke’s
system. The facilities provide about 10 percent of Duke’s peaking supply during
extremely cold weather.
{¶ 33} The board found persuasive Duke’s claim that a need for the project
existed based upon the age and condition of the facilities and caverns. The board
pointed to the testimony of Duke witnesses Hebbeler and Adam Long, Duke’s
general manager of pipeline operations, both of whom explained that the facilities’
useful lives were at or near an end and that their failure could subject potentially
50,000 customers to a loss of service on a peak winter day. In particular, Long
observed that the caverns cannot be inspected, repaired, upgraded, or replaced and
may fail at any moment and that the proposed project would offset the loss of supply
from the caverns while ensuring reliable service.
{¶ 34} The board next relied on a report prepared for Duke by Lummus, a
consulting firm, which recommended that Duke consider “phasing out, closing, and
decommissioning” the facilities and caverns. Lummus’s report stated that the
caverns “are showing signs that they are near the end of their useful life.” It also
stated that “[u]nlike natural gas, which is lighter than air and will quickly dissipate
1. In its reply brief, NOPE claims for the first time that the board’s findings are not reliable because
they draw in part on data related to Duke’s Kentucky customers. We decline to address this newly
raised argument. Corrigan v. Illuminating Co., 151 Ohio St.3d 85, 2017-Ohio-7555, 86 N.E.3d 287,
¶ 11, fn. 1.
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in the event of a leak, propane is heavier than air, and if leaked will seek low-lying
areas where it can amass and become a more serious safety hazard.”
{¶ 35} NOPE claims that the board’s findings regarding the facilities and
caverns are mistaken. First, it argues that the board relied on inadmissible hearsay,
such as Long’s statements relying on the opinions of third parties about the state of
the facilities and caverns. At the hearing, the board’s administrative law judge
overruled a hearsay objection to Long’s testimony, determining instead that the
testimony would be given the “appropriate value” it deserves. NOPE’s argument
gets no traction because while Ohio law empowers the board to specify the rules of
evidence that “shall apply to the proceeding,” R.C. 4906.09, NOPE does no more
than pin a label on Long’s testimony. The lack of an authority-based argument
defeats NOPE’s contention. See Util. Serv. Partners, Inc. v. Pub. Util. Comm., 124
Ohio St.3d 284, 2009-Ohio-6764, 921 N.E.2d 1038, ¶ 53 (an argument is
effectively waived when “[n]o argument is supplied regarding whether the relevant
case law, applied to the facts of this case, justifies a decision in [the party’s] favor”).
{¶ 36} Second, NOPE argues that the board’s findings regarding the
propensity of the caverns to leak are flawed because the findings do not derive from
a geologist’s testimony. But NOPE cites no requirement that the board must base
its decision on such testimony. Without more, we “defer to the [board’s] credibility
determinations in its role as finder of fact” because Long’s testimony provides
“sufficient probative evidence” to support the board’s finding. Harris Design
Servs. v. Columbia Gas of Ohio, Inc., 154 Ohio St.3d 140, 2018-Ohio-2395, 112
N.E.3d 858, ¶ 14.
{¶ 37} Third, NOPE argues that the record shows that the caverns have
operated in a safe and reliable manner and that no outages have occurred when
Duke has had to repair the facilities. It is true that Long could not identify leaks or
other problems with the facilities and caverns. Even so, Long’s testimony does not
impugn the board’s findings that the caverns are at or near the end of their useful
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lives. And we discern nothing unreasonable or unlawful in the board’s
determination that “prudent system planning requires a proactive approach that
includes the periodic retirement of outdated facilities,” Power Siting Bd. No. 16-
0253-GA-BTX at ¶ 57 (Nov. 21, 2019).
{¶ 38} Fourth, NOPE alleges, without any record citations, that the board
erred in crediting Duke’s modeling of its system capacity. In NOPE’s view, the
evidence demonstrates that Duke’s system area will see a declining population and
weak growth forecasts. The board, however, agreed with its staff’s determination
that Duke had “properly evaluated the anticipated system conditions under peak
load.” Id. It also found that Duke’s analysis accorded with the Lummus report.
Sufficient probative evidence supports the board’s determinations.
{¶ 39} Last, NOPE points to Duke’s admission in a discovery response that
the existing facilities would remain operational for “several years” after the project
was placed in service. In NOPE’s view, this undermines Duke’s claimed need to
retire the plants. At first blush, NOPE would seem to have a point. But some
context is helpful here—the full discovery response states: “After the [project] is in
service and depending on the current system usage, [Duke] expects that the
propane-air peaking plants will continue to be operational for several years before
decommissioning as demand and system configurations are adjusted.” The board
accounted for this context in its order, determining that the plants’ retirement would
be driven by Duke’s assessment of how the overall system responds to the project
after it is placed in service. Thus, while a snippet of the discovery response
arguably cuts against Duke’s claim of need, the board determined that the full
response does not. The board’s evaluation of the evidence merits deference and we
will not disturb it. Cleveland Elec. Illum. Co. v. Pub. Util. Comm., 76 Ohio St.3d
163, 165, 666 N.E.2d 1372 (1996) (the PUCO’s factual determinations “are entitled
to deference”).
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b. North/south system supply balance
{¶ 40} Duke’s system currently receives 55 percent of its natural-gas supply
on a peak-usage winter day through a single station, the Foster Station, located in
Kentucky. The board determined that although the pipeline would “not eliminate
[Duke’s] substantial dependence on [the] Foster Station, the [pipeline] would begin
to address the issue, with the station serving approximately 45 to 50 percent of peak
day load rather than 55 percent.” Power Siting Bd. No. 16-0253-GA-BTX at ¶ 58
(Nov. 21, 2019).
{¶ 41} In NOPE’s view, this reduction is an insignificant improvement that
does not justify the pipeline.2 The difficulty with NOPE’s argument is its open-
endedness. NOPE cites no quantitative standard for discerning the sufficiency of
an improvement, so we cannot say that the board erred in crediting the pipeline’s
installation as mitigating Duke’s dependence on the Foster Station.
{¶ 42} What is more, NOPE fails to reckon with the board’s reliance on the
Lummus report, which concluded from a qualitative perspective that Duke’s
dependence on the Foster Station posed a “significant exposure to reliability” and
threatened “far reaching” consequences should a supply disruption occur. We
recognize that other witnesses viewed the challenges posed to Duke’s system by
the Foster Station differently, but NOPE’s reliance on these witnesses reflects at
most that the evidence on this subject pointed both ways—that is not enough to
justify reversal. See In re Application of Ohio Power Co., 155 Ohio St.3d 326,
2018-Ohio-4698, 121 N.E.3d 320, ¶ 45 (“the mere fact that evidence before the
commission points both ways does not justify reversal”).
2. Duke claims the court cannot address this argument because, it says, NOPE did not include it in
its rehearing application. We have jurisdiction to address the argument because the city of
Cincinnati and the Board of County Commissioners of Hamilton County specified the issue in their
rehearing application. See Cincinnati Bell Tel. Co. v. Pub. Util. Comm., 92 Ohio St.3d 177, 180,
749 N.E.2d 262 (2001).
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c. Aging infrastructure
{¶ 43} The third reason cited by the board in support of the need to
implement the proposed project lay in facilitating Duke’s replacement of aging
pipelines. The board found Hebbeler’s testimony persuasive in this regard. He
testified to Duke’s obligation to replace infrastructure that is near the end of its
useful life and its duty to ensure compliance with federal pipeline safety
regulations.3 In particular, he addressed the need to ensure an upgrade to Line A, a
pipeline constructed between the 1940s and 1960s that forms a backbone
component of Duke’s delivery system. The board’s staff reported that the project
would enable Duke to replace Line A while maintaining service.
{¶ 44} NOPE challenges the board’s analysis, claiming that Duke is capable
of upgrading its infrastructure without the project. It notes that Duke’s Accelerated
Main Replacement Program has enabled Duke to replace over 1,100 miles of main
lines and over 120,000 service lines. But NOPE does not explain whether the
parameters of that program would cover Line A or the project.
{¶ 45} NOPE next asserts that because Duke has maintained and repaired a
section of Line A in the past without causing outages, it could do so in the future.
But Hebbeler explained that the repair took place in an area of the system where
sections are “easier to replace.” And NOPE points to no evidence that future
replacements would be done under the same conditions. Without more, NOPE
cannot establish reversible error. See In re Application of Ohio Power Co., 155
Ohio St.3d 326, 2018-Ohio-4698, 121 N.E.3d 320, at ¶ 50 (“We will not reverse a
commission order based on speculation”).
{¶ 46} Last, NOPE claims that Duke’s discovery responses undermine the
claim that the project is needed to upgrade and replace aging infrastructure. Duke
3. Federal pipeline safety regulations are set forth at 49 C.F.R. 192.1 et seq. and are administered
by the Pipeline and Hazardous Materials Safety Administration. The PUCO has adopted these
regulations for the purpose of intrastate enforcement. Ohio Adm.Code 4901:1-16-03.
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stated that “[a]ny future upgrade, replacement, or improvement of Line A will not
affect the need for the Pipeline,” that it could “perform maintenance on existing
lines in the central corridor without building the proposed pipeline,” and that Line
A could be “upgraded and/or replaced without the proposed line.”
{¶ 47} Although the board accounted for these responses, noting that NOPE
had cited them as a reason to deny Duke’s application, it did not find them
compelling enough to overcome the other record evidence. The board found
persuasive Hebbeler’s testimony that Line A is near the end of its useful life and
must be replaced to conform to current pipeline safety regulations. It also credited
his and the staff’s opinions that the project would enable Duke to replace Line A
without service interruptions. We will not reweigh the board’s evaluation of this
evidence. See In re Complaints of Lycourt-Donovan v. Columbia Gas of Ohio, Inc.,
152 Ohio St.3d 73, 2017-Ohio-7566, 93 N.E.3d 902, ¶ 35 (“Our function on appeal
is not to reweigh the evidence or second-guess the PUCO on questions of fact”).
C. Whether the board erred in determining that Duke’s proposal met the
conditions of R.C. 4906.10(A)(2) (NOPE proposition of law No. 1)
{¶ 48} Under R.C. 4906.10(A)(2), the board must find and determine “[t]he
nature of the probable environmental impact” before granting a certificate. NOPE
first argues that this condition is unmet because neither the staff nor Duke addressed
the project’s potential conflict with a planned sewer project in the city of Reading.
We lack jurisdiction to address this argument because NOPE did not raise it in its
notice of appeal. See In re Application of Ohio Power Co., 155 Ohio St.3d 326,
2018-Ohio-4698, 121 N.E.3d 320, at ¶ 66. In any event, even if Duke or the staff
did not account for NOPE’s sewer argument, the board did so in its order.
Moreover, NOPE does not contest Duke’s observation that adjustments necessary
to avoid a conflict with the sewer project have been filed with the board in a separate
case or explain why these adjustments are insufficient to allay its concerns. See In
re Application of Columbus S. Power Co., 129 Ohio St.3d 271, 2011-Ohio-2638,
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January Term, 2021
951 N.E.2d 751, ¶ 16 (suggesting that if separate proceedings are underway in
another case, an appellant should explain why they are insufficient to redress its
grievance).
{¶ 49} NOPE next argues that the board did not meaningfully apply R.C.
4906.10(A)(2) but instead applied a so-called “check-the-box approach” whereby
the board accepted any evidence provided by Duke and then “moved on to the next
requirement as if an administrative checklist was the intent of the impacts analysis.”
Duke counters that this court cannot consider the argument because NOPE did not
raise it in its portion of the joint notice of appeal. See In re Application of Ohio
Power Co. at ¶ 66. It is true that NOPE’s portion of the joint notice of appeal does
not identify this argument. Blue Ash, however, raised a similar argument in its
portion of the joint notice of appeal.
{¶ 50} Assuming without deciding that NOPE’s argument is
jurisdictionally proper based on what Blue Ash wrote, the argument still fails, for
NOPE simply cites various pages from the hearing transcript without providing
analysis to aid our decision. Moreover, the board’s determination under R.C.
4906.10(A)(2) spans 32 paragraphs of analysis, in which the board identifies the
evidence marshaled by Duke, the staff, NOPE, and others. The board then
concludes: “Based on the evidence in the record, and consistent with our findings
* * * we agree that the nature of the probable environmental impact associated with
the Project has been determined, in accordance with R.C. 4906.10(A)(2).” Power
Siting Bd. No. 16-0253-GA-BTX at ¶ 93 (Nov. 21, 2019). NOPE’s general
disagreement with how the board conducted its analysis is not enough to establish
reversible error. See In re Application of Columbus S. Power at ¶ 17 (“[Appellant]
has done little more than register its disagreement with the commission’s approach.
That is not enough to justify reversal”).
{¶ 51} Also unavailing is NOPE’s citation of Ohio Edison Co. v. Power
Siting Comm., 56 Ohio St.2d 212, 383 N.E.2d 588 (1978). In that case, this court
17
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determined that the board’s predecessor, the power siting commission, was required
by rule to analyze the recreational impact of a proposed facility. Because the
commission had considered the impact in its order, this court affirmed the
commission’s order. In similar fashion, the board’s order here shows that it
conducted a lengthy analysis of the “nature of the probable environmental impact,”
just as R.C. 4906.10(A)(2) requires.
{¶ 52} Last, NOPE faults the board’s determination that “Duke must
continue to involve and inform local officials as the Company proceeds with the
Project, particularly with respect to the traffic and other construction-related
concerns identified by [certain] intervenors * * * [and] work with the local
communities along the alternate route throughout the remainder of the siting
process.” Power Siting Bd. No. 16-0253-GA-BTX at ¶ 123 (Nov. 21, 2019).
NOPE claims that this creates an unreasonable after-the-fact review process. We
disagree. The quoted passage should be understood as creating a certificate
condition, something the board is plainly empowered to do in the exercise of its
statutory powers. See R.C. 4906.10(A) (“The power siting board shall render a
decision upon the record either granting or denying the application as filed, or
granting it upon such * * * conditions * * * as the board considers appropriate”
[emphasis added]).
D. Whether the board properly accounted for the interest of safety in evaluating
Duke’s proposal (Blue Ash proposition of law No. 1)
{¶ 53} R.C. 4906.10(A)(6) requires that the board find and determine that
“the facility will serve the public interest, convenience, and necessity.” Blue Ash
argues that the board violated this provision by overlooking safety concerns
associated with the project.4
4. Although the word “safety” does not appear in R.C. 4906.10(A)(6), no one disputes that the board
may consider the interests of safety in applying that division’s terms.
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January Term, 2021
1. Potential impact radius
{¶ 54} Blue Ash points to alleged irregularities in how Duke described the
project’s “potential impact radius,” a term meaning “the radius of a circle within
which the potential failure of a pipeline could have significant impact on people or
property,” 49 C.F.R. 192.903. Blue Ash notes that Duke described the project’s
potential impact radius as 326 feet on its website. At the hearing, however, Duke
witness Hebbeler testified that the term did not apply because the project was
classified as a high-pressure distribution line. He added that the website was
perhaps referring to the original 30-inch pipeline project rather than the amended
20-inch pipeline project.
{¶ 55} Blue Ash says that the discrepancies frustrated its ability to evaluate
the project’s risks and that a new hearing is required to redress the problem. In
support, it cites In re Application of Middletown Coke Co., 127 Ohio St.3d 348,
2010-Ohio-5725, 939 N.E.2d 1210. In that case, an intervenor sought to challenge
the siting of a facility, using discovery requests, questions on cross-examination,
and proffered evidence. The board barred the intervenor from doing so, reasoning
that the information that the intervenor sought to introduce related to subject areas
over which it lacked jurisdiction. On appeal, this court determined that the board
erred in its jurisdictional determination, which “affect[ed] the scope of [the board’s]
substantive investigation and analysis * * * [and] limited the scope of discovery,
cross-examination, and [the intervenor’s] ability to introduce its own evidence into
the record.” Id. at ¶ 23. The court thus remanded with instructions that the board
consider the matters affected by its erroneous jurisdictional ruling.
{¶ 56} This case is readily distinguishable from Middletown Coke. Unlike
in that case, the board here permitted Blue Ash to build its factual case, which Blue
Ash did. Moreover, returning this case to the board to further analyze the potential-
impact-radius issue would be futile because Blue Ash does not challenge
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Hebbeler’s testimony that a potential-impact-radius inquiry is unnecessary under
the facts.
2. High-consequence areas
{¶ 57} Blue Ash next points to alleged irregularities in Duke’s description
of “high consequence areas,” a term that generally refers to “densely populated
locales where a release of gas could pose a significant risk of injury or death,”
United States v. Pacific Gas & Elec. Co., 178 F.Supp.3d 927, 939 (N.D.Cal.2016),
citing 49 C.F.R. 192.903. Blue Ash again refers to Duke’s website, which
explained that while only segments of the pipeline would run through high-
consequence areas, it planned to construct the entire pipeline as if it were running
through such areas. Blue Ash then points to Hebbeler’s hearing testimony that a
high-consequence-area designation has no application to a 20-inch pipeline and that
the website should be changed. Blue Ash claims that Duke’s wobbling on high-
consequence areas caused it to overlook whether the pipeline’s proximity to
Summit Park, which receives about 850,000 visitors per year, would make the park
a high-consequence area.
{¶ 58} It is unclear what Blue Ash is getting at with these arguments. It
does not contest Hebbeler’s testimony that a high-consequence-area analysis does
not apply to the pipeline, and it does not dispute that the board permitted it to
develop its factual case on this issue. Under these circumstances, Blue Ash has not
established reversible error.
3. Paskett’s testimony
{¶ 59} Blue Ash challenges the testimony of Duke witness Bruce Paskett,
arguing that the board should have disregarded it as unreliable. Paskett is an
engineer who provides consulting services to natural-gas-transmission and natural-
gas-distribution pipeline operators regarding pipeline safety, pipeline-integrity
management, and compliance with federal and state pipeline-safety regulations.
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January Term, 2021
{¶ 60} The board pointed to Paskett’s testimony to support its decision to
categorize the pipeline as a distribution pipeline, to support its finding that Duke
intended to exceed gas-pipeline-safety requirements to ensure the long-term safety
and reliability of the pipeline, and for his analysis of pipeline-integrity-management
requirements. But Blue Ash does not focus on these findings. Instead, it alleges
that Paskett cherry-picked data to support his conclusions and provided inconsistent
testimony concerning the probability of risk and magnitude of harm resulting from
a distribution-pipeline failure. The board, however, did not rely on the portions of
Paskett’s testimony that Blue Ash references. It follows, then, that Blue Ash was
not harmed by those portions. See In re Application of Ohio Power Co., 155 Ohio
St.3d 320, 2018-Ohio-4697, 121 N.E.3d 315, ¶ 18 (“The party seeking reversal of
the commission’s order must demonstrate prejudice or harm from the order on
appeal”).
4. Blue Ash’s claim that “Duke attempted to minimize the potential risks
associated with natural gas leaks”
{¶ 61} Blue Ash claims that Duke misrepresented the potential risks of
natural-gas leaks that could arise from the pipeline’s operation. But in the very next
sentence of its brief, Blue Ash states that “[n]umerous Duke witnesses, including
Hebbeler and Paskett, conceded pipeline leaks can be dangerous.” Given Blue
Ash’s recognition that Duke acknowledged the risks associated with natural-gas
leaks, there is no basis for us to conclude that Duke tried to minimize such risks.
5. Whether the board ignored safety risks
{¶ 62} Blue Ash intersperses its arguments concerning the reliability and
candor of witnesses Paskett, Hebbeler, and Long with claims that the board ignored
safety risks associated with the project. For ease of analysis, we separately address
those safety-related claims here.5
5. In this section of its brief, Blue Ash also makes the conclusory argument that the board erred in
classifying the pipeline as a distribution rather than transmission pipeline. Because Blue Ash cites
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{¶ 63} First, Blue Ash points to Duke’s website, which recounts five
instances in which Duke violated federal-pipeline-safety requirements. In four of
the five instances, an explosion resulted. If explosions happened in the past, the
argument runs, then they could happen in the future. Second, it points to the
pipeline’s operating pressure, which the board’s staff agreed is high for a
distribution pipeline. The high operating pressure, Blue Ash reasons, heightens the
risk of the pipeline’s failure. Third, it points to statistical data on injuries and
fatalities associated with the operation of distribution pipelines, observing that the
risks of such incidents have risen over the past decade or so. In particular, it cites
the testimony of Gordon Perry, Blue Ash’s public-works director, who warned that
a pipeline incident occurring near one of Blue Ash’s summer events in Summit
Park could result in catastrophic harm.
{¶ 64} Blue Ash’s assertions cannot be squared with the board’s order. The
board observed that “safety in the construction, operation, and maintenance of
facilities is of paramount importance when natural gas is involved.” Power Siting
Bd. No. 16-0253-GA-BTX at ¶ 152 (Nov. 21, 2019). Underscoring this statement,
the board pointed to Duke’s commitments to apply what Duke described as
“enhanced design, construction, operation and assessment criteria” to the pipeline’s
installation and maintenance.
In terms of design enhancements, Duke promised that the pipeline would
 have a wall thickness more than twice that required for transmission lines
in Class 4 locations;6
no authority in support, we reject it. See Util. Serv. Partners, 124 Ohio St.3d 284, 2009-Ohio-6764,
921 N.E.2d 1038, at ¶ 53.
6. The board’s order, citing 49 C.F.R. 192.5, observes that a Class 4 location “is any class location
unit where buildings with four or more stories above ground are prevalent; a class location unit is
an onshore area that extends 220 yards on either side of the centerline of any continuous one-mile
length of pipeline.” Power Siting Bd. No. 16-0253-GA-BTX at ¶ 137 (Nov. 21, 2019), fn.19.
22
January Term, 2021
 accommodate the passage of in-line inspection tools, which is required for
transmission lines but not high-pressure distribution lines;
 have five-mile valve spacing, which although not required for high-pressure
distribution lines, is consistent with federal spacing requirements for Class
4 transmission pipelines; and
 have remote-control valves, which empower Duke to immediately shut
down the pipeline should a problem occur.
{¶ 65} As for the construction enhancements, Duke promised that the
pipeline would
 be installed and pressure tested to meet transmission-line requirements;
 be installed at a depth of about 48 inches of cover, which is twice that
required for distribution lines and a foot deeper than that required for
transmission lines; and
 receive hydrostatic pressure testing in accord with transmission-line
requirements.
{¶ 66} Commenting on the operation-and-assessment criteria, Duke
promised that it would perform an integrity assessment with in-line-inspection
devices before placing the pipeline in service, then again in ten years, and then
every seven years thereafter.
{¶ 67} The board also pointed to Paskett’s testimony that Duke’s plans had
gone “above and beyond” federal requirements and the staff’s conclusions that the
pipeline would “meet or exceed” those requirements.
{¶ 68} Staff witness Peter Chace, gas-pipeline-safety program manager for
the PUCO, whose testimony the board found persuasive, explained that while
federal law permits the installation of pipelines in densely populated areas, it also
subjects them to a greater level of safety precautions. He recommended that Duke
take greater safety precautions than those prescribed by federal regulatory law,
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SUPREME COURT OF OHIO
namely, by allowing for the passage of internal inspection devices, using
sectionalized block valves, maintaining 12 inches of clearance from underground
structures, and placing underground warning tape above the pipeline as a caution
to any excavators. The board adopted these recommendations as conditions of the
certificate. Chace further stated that the PUCO would conduct a preoperation
inspection of the pipeline, with the pipeline undergoing inspections annually or at
least every other year.
{¶ 69} The board also pointed to several safety-related duties imposed on
Duke by federal law, namely, the duty to carry out a written program to prevent
pipeline damage resulting from excavation activities (49 C.F.R. 192.614), the duty
to establish written procedures for minimizing hazards resulting from a gas-pipeline
emergency (49 C.F.R. 192.615), the duty to develop and implement a written
continuing-public-education program addressing, among other things, steps that
should be taken for public safety in the event of a gas-pipeline release (49 C.F.R.
192.616), and the duty to maintain a written integrity-management plan addressing,
among other things, threats and risks to the pipeline (49 C.F.R. 192.1007). “Duke’s
compliance with all of these gas pipeline safety requirements,” the board observed,
would “be the subject of ongoing safety inspections by the [PUCO].” Power Siting
Bd. No. 16-0253-GA-BTX at ¶ 154 (Nov. 21, 2019).
{¶ 70} Blue Ash’s arguments that the board ignored safety concerns
regarding Summit Park miss the mark too. Although Blue Ash claimed that the
board “did not even cite or address Blue Ash’s testimony on this issue,” the board’s
order cites the staff report, which identifies an impact on the park, acknowledges
Blue Ash’s concerns related to the park, and orders Duke in condition 12 to
“minimize construction impacts [sic] in active parks and recreation areas” and
conduct construction activities in such areas “during off-season or off-peak times,”
id. at ¶ 108, Condition 12.
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January Term, 2021
{¶ 71} In summary, the board’s findings belie Blue Ash’s assertions that the
board disregarded safety interests. Because there is ample evidence to support the
board’s conclusion that “Duke and Staff have thoroughly addressed the safety
considerations related to the Project, as raised by the intervenors and the public,
and that the Company has provided sufficient information on this issue,” id. at
¶ 154, we do not second guess it. See In re Complaints of Lycourt-Donovan, 152
Ohio St.3d 73, 2017-Ohio-7566, 93 N.E.3d 902, at ¶ 35.
E. Whether the board erred by not requiring Duke to evaluate Blue Ash’s
most recent comprehensive plan (Blue Ash proposition of law No. 3)
{¶ 72} Under the board’s rules, an applicant must describe the “impact of
the facility on regional development, referring to pertinent formally adopted
regional development plans,” Ohio Adm.Code 4906-5-07(D)(1), and assess the
“compatibility of the proposed facility and the anticipated resultant regional
development with current regional land use plans,” id. at (D)(2). Relying on this
rule, Blue Ash argues that the board erred by permitting Duke to evaluate the
pipeline’s impact against Blue Ash’s 2003 comprehensive-regional-development
plan rather than its 2016 plan.
{¶ 73} The board addressed this in its order, noting that although an
applicant should “attempt to obtain the most recent land use planning documents,”
Power Siting Bd. No. 16-0253-GA-BTX at ¶ 75 (Nov. 21, 2019), and “consult with
local officials to identify and avoid conflicts,” id. at ¶ 75, fn. 13, “Duke had
provided sufficient information to comply with the rule,” id. at ¶ 75. The board
further addressed this issue in its order on rehearing, explaining that although Blue
Ash’s most recent plan took effect in early 2016, Duke’s route-selection consultant
finished its analysis in May 2016: “Given that [the consultant’s] route selection
study report was already completed by May 2016, we do not agree with Blue Ash’s
contention that there is clear evidence showing that Duke relied on outdated
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SUPREME COURT OF OHIO
information.” Power Siting Bd. No. 16-0253-GA-BTX, Rehearing entry, at ¶ 71
(Feb. 20, 2020).
{¶ 74} We will presume orders are reasonable; it falls to an appellant to
upset that presumption. In re Application of Columbus S. Power Co., 129 Ohio
St.3d 271, 2011-Ohio-2638, 951 N.E.2d 751, at ¶ 18. Here, Blue Ash asks us to
reverse without furnishing a complete set of facts to guide our inquiry. Other than
referring to the plan as taking effect in “early 2016,” Blue Ash does not specify the
precise date upon which the plan took effect or point to where in the record such a
plan may be found, if at all. Nor does it specify the precise date upon which Duke’s
consultant began its study. Likewise, we do not know what, if any, attempts were
made by Duke to obtain the most current plan. These lingering factual questions
matter because, if Duke’s consultant commenced its study before the 2016 plan
took effect, then the consultant would have necessarily relied on the 2003 plan to
do its work. Under that scenario, the 2003 plan would have been the “current plan”
as the rule requires. It follows that by failing to provide a more robust factual
narrative in support of its argument, Blue Ash has not upset the presumption of
reasonableness that attaches to the board’s order.
{¶ 75} Further, Blue Ash does not explain whether there are any material
differences between the 2003 and 2016 plans. If there are none, then Blue Ash was
not harmed by the consultant’s reliance on the 2003 plan. And even if there are
differences, it was Blue Ash’s burden to point them out rather than leaving it to us
to speculate about what they might be. See In re Application of Ohio Power Co.,
155 Ohio St.3d 326, 2018-Ohio-4698, 121 N.E.3d 320, at ¶ 50 (“We will not
reverse a commission order based on speculation”).
{¶ 76} Blue Ash next points to the board’s findings about whether the
pipeline could have been routed within Interstate 71’s right-of-way.7 Blue Ash’s
7. Duke claims Blue Ash did not preserve this argument in its rehearing application, but Blue Ash’s
application does address the issue.
26
January Term, 2021
concern is with the board’s finding that Duke did not seriously explore a route
within the right-of-way because, the board said, ODOT generally does not permit
utility infrastructure within its right of way. According to Blue Ash, the board’s
finding cannot stand because the record does not contain testimony from an ODOT
official. But Blue Ash cites no authority requiring testimony from such an official.
And contrary to what Blue Ash says, there is support in the record for the board’s
finding in the form of Duke’s amended application and route-selection study.
F. Whether the board erred in evaluating the pipeline’s estimated tax benefits
(Blue Ash proposition of law No. 4)
{¶ 77} Under the board’s rules, an applicant must “provide an estimate of
the increase in tax revenues as a result of facility placement.” Ohio Adm.Code
4906-5-06(D)(5).
{¶ 78} In its amended application, Duke estimated that the alternate route
would generate approximately $2.2 million in tax benefits under 2016 tax rates,
with $617,000 going to Blue Ash. Duke later supplemented this information,
estimating that the alternate route would generate nearly $2.9 million in tax benefits
under 2018 tax rates, with a little more than $1 million going to Blue Ash. After
Duke filed this supplement, Hebbeler testified that the alternate route would
generate $2.2 million in tax benefits under 2016 tax rates, with $818,596 going to
Blue Ash. The board determined that Duke’s updated tax estimates using 2018 tax
rates met the conditions of the rule, enabling a determination of the expected
economic impact between the two routes.
{¶ 79} Blue Ash argues that the board’s tax-estimate findings lack record
support, but the preceding paragraph defeats that argument—it shows that the
estimates are rooted in the record. Blue Ash next argues that the tax-estimate
inconsistencies require reversal, but Blue Ash overlooks that the board focused on
the most recent set of estimates, namely, those pertaining to 2018 rather than 2016.
Thus, while part of Duke’s estimates for 2016 arguably conflict, the same cannot
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SUPREME COURT OF OHIO
be said for 2018, because Duke provided just one estimate for 2018. And Blue Ash
does not explain why it was unreasonable or unlawful for the board to rely on a
more recent tax estimate, which used 2018 rather than 2016 data, in determining
compliance with the rule.
G. Whether the board deprived Blue Ash of due process of law (Blue Ash
proposition of law No. 5)
{¶ 80} Blue Ash argues that the board deprived it of its procedural due-
process rights guaranteed under Article I, Section 16 of the Ohio Constitution by
“accepting Duke’s word at face value” as opposed to vetting the information
bearing on Duke’s application.
{¶ 81} In response, Duke argues that Blue Ash has deprived this court of
jurisdiction to consider the argument because Blue Ash did not preserve it in a
rehearing application. Duke is correct that Blue Ash’s application does not preserve
the argument, but Blue Ash asserts that this omission is not fatal because Reading
raised a due-process argument in its rehearing application. In support, Blue Ash
invokes Cincinnati Bell Tel.’s holding that “R.C. 4903.10 does not require that the
error be alleged in the appellant’s application for rehearing; it can be in an
application for rehearing filed by a nonappellant intervening party,” 92 Ohio St.3d
at 180, 749 N.E.2d 262.
{¶ 82} Cincinnati Bell Tel. is distinguishable. We did not hold in that case
that one intervenor (Reading) may raise the due-process concerns of another (Blue
Ash), and Blue Ash cites no authority endorsing a group theory of due process. We
therefore do not reach Blue Ash’s argument.
IV. CONCLUSION
{¶ 83} For the foregoing reasons, we affirm the board’s order granting Duke
a certificate of environmental compatibility and public need to construct, operate,
and maintain a natural-gas pipeline.
Order affirmed.
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January Term, 2021
O’CONNOR, C.J., and HENSAL, DEWINE, DONNELLY, and BRUNNER, JJ.,
concur.
KENNEDY, J., concurs, with an opinion.
JENNIFER L. HENSAL, J., of the Ninth District Court of Appeals, sitting for
FISCHER, J.
_________________
KENNEDY, J., concurring.
{¶ 84} I concur in the judgment of the majority and fully join the majority
opinion. However, I write separately to address appellee Ohio Power Siting
Board’s failure to comply with its own administrative rules, as argued by appellants
the city of Reading and its safety-service director, Patrick Ross (“Reading”), and
the city manager for the city of Blue Ash, David Waltz (“Blue Ash”). An
administrative agency owes a duty to the citizens of Ohio to consistently comply
with its own rules and procedures. In this matter, the board unquestionably did not
comply with its rules and thereby failed in its duty to the public.
{¶ 85} R.C. 4906.06(A)(6) establishes that an applicant for a gas-pipeline
certificate must file with the board’s chairman “[s]uch * * * information * * * as
the board by rule or order may require.” An application for a gas-pipeline
certificate “shall include fully developed information on two * * * routes,” one
designated as a “preferred” route and the other as an “alternate” route. Ohio
Adm.Code 4906-3-05. Within 60 days of receiving the application, the chairman
has only two options—either accept it as complete and in compliance with R.C.
4906.06 and the board’s rules or reject it as incomplete with a statement explaining
the basis of the rejection. Ohio Adm.Code 4906-3-06(A)(1) and (2).
{¶ 86} However, neither intervening appellee, Duke Energy Ohio, Inc., nor
the board complied with these straightforward rules. Duke acknowledged that
when the application was filed, the preferred route was the focus of its application
and the alternate route had not been fully developed. Despite this patent failure,
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SUPREME COURT OF OHIO
the board accepted the application as complete and in compliance with R.C.
4906.06 and the board’s rules.
{¶ 87} I recognize that our case law requires that appellants Reading and
Blue Ash establish that they were harmed by this alleged error, which they have not
done. This does not diminish, however, the blatant failure of the board to follow
its own rule. “While an agency has a certain amount of discretion in adopting rules
to carry out the legislative objective,” Clayton v. Ohio Bd. of Nursing, 147 Ohio
St.3d 114, 2016-Ohio-643, 62 N.E.3d 132, ¶ 48 (Kennedy, J., dissenting), agencies
should not be permitted to “pick and choose” which rules they will follow. Failing
to be consistent in the execution of administrative rules affects the citizens of our
state and does a disservice to our system of government. Administrative agencies
should—and can—do better.
{¶ 88} I concur.
_________________
David T. Stevenson, Reading Law Director, for appellants city of Reading
and Patrick Ross.
Dinsmore & Shohl, L.L.P., Bryan E. Pacheco, and Mark G. Arnzen, for
appellant David Waltz.
Fair Shake Environmental Legal Services and John A. Heer, for appellant
Neighbors Opposed to Pipeline Extension, L.L.C.
Dave Yost, Attorney General, John J. Jones, Section Chief, and Steven L.
Beeler, Thomas G. Lindgren, and Robert A. Eubanks, Assistant Attorneys General,
for appellee.
Barnes & Thornburg, L.L.P., C. David Paragas, and Jeanine Kerridge; and
Jeanne W. Kingery, Rocco O. D’Ascenzo, and Larisa M. Vaysman, for intervening
appellee.
_________________
30