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In re Complaint of Cameron Creek Apartments

Supreme Court of Ohio

August 29, 2013

In re Complaint of Cameron Creek Apartments, Intervening Appellee,
Columbia Gas of Ohio, Inc., Appellant; Public Utilities Commission of Ohio, Appellee.

Submitted April 10, 2013

Appeal from the Public Utilities Commission, No. 08-1091-GA-CSS.

Isaac, Wiles, Boyle, Burkholder & Teetor, L.L.C., Brian M. Zets, and Thomas L. Hart, for intervening appellee Cameron Creek Apartments.

Porter, Wright, Morris & Arthur, L.L.P., Eric B. Gallon, and Mark S. Stemm; Charles McCreery, Stephen B. Seiple, and Brooke Leslie, for appellant.

Michael DeWine, Attorney General, William L. Wright, Thomas W. McNamee, and Devin D. Parram, Assistant Attorneys General, for appellee Public Utilities Commission of Ohio.

O'Neill, J.


(¶ 1} Appellant, Columbia Gas of Ohio, Inc., is a public utility under R.C. 4905.02. Columbia provides natural gas to intervening appellee, Cameron Creek Apartments, a complex located in Galloway, Ohio.

(¶ 2} Cameron Creek filed a complaint with the Public Utilities Commission of Ohio pursuant to R.C. 4905.26, alleging that Columbia had demanded major structural retrofitting of the ventilation system to the gas appliances in each apartment in the complex. According to Cameron Creek, Columbia unilaterally declared the method of ventilation unsafe because Cameron Creek had failed to comply with the National Fuel Gas Code ("NFG Code") and threatened to disconnect gas service to the entire complex unless Cameron Creek retrofitted the units to meet NFG Code requirements. The complaint requested that the commission prohibit Columbia from terminating service and requiring expensive remedial construction.

(¶ 3} The commission found in favor of Cameron Creek, and Columbia appealed to this court. Columbia raises six propositions of law. None has merit. Therefore, we affirm the commission's orders.

Facts and Procedural Background

(¶ 4} Cameron Creek consists of 240 apartment units. There are 21 two-story buildings in the complex. The apartments are flats, with each second-floor apartment located directly above a first-floor apartment. Each apartment has a gas furnace and gas water heater. Each apartment also contains a hard-wired combination smoke-detector and carbon-monoxide alarm located in the main living area.

(¶ 5} At issue in this case is the manner in which the gas appliances are vented. The one-bedroom and two-bedroom apartments each have a gas furnace and gas water heater located in a bathroom closet. The walls of the closet have two air grilles that open up into the apartment's main living room. The furnace has a four-inch vent connector and the water heater has a three-inch vent connector. Both of these connectors are tied together into either a five-inch or six-inch vent. In turn, the vent that runs from the first-floor appliances is tied together with the vent from the second-floor appliances and vented through the roof using a single stack. The three-bedroom apartment is similar, but its gas appliances are located in a hallway closet instead of the bathroom.

(¶ 6} The city of Columbus approved a building permit for Cameron Creek in 1997 and a final occupancy permit in 1998. When Cameron Creek installed the gas appliances, the installations and venting configuration complied with the city's existing building code.

(¶ 7} Since 1990, Columbia has continuously used the NFG Code[1] as a reference standard for evaluating the safety of residential gas lines and appliance installations and venting. The NFG Code is a model code written by a private organization that sets out recommended general standards for installations and operations of gas piping and appliances. Columbia considers violations of the NFG Code to be a significant safety hazard and a threat to human life.

(¶ 8} In 2006, Columbia began "red tagging" gas appliances at Cameron Creek, citing violations of the NFG Code. Under Columbia's red-tag policy, service technicians are required to turn off the gas supply and attach a red tag to a gas appliance if the appliance is deemed unsafe. Columbia would not reestablish gas service until the customer had arranged for a qualified repairman to make any necessary repairs.

(¶ 9} On January 14 and February 18, 2008, Columbia sent letters to Cameron Creek stating that the ventilation of the gas furnaces and water heaters did not comply with the NFG Code and that remedial measures needed to be taken to ensure tenant safety. Columbia presented testimony that the NFG Code requires that Cameron Creek obtain all air involved in combustion, ventilation, and dilution in the gas furnaces and water heaters directly from outdoors and that self-closing doors with weather-stripping be installed on the closets where the appliances are located. Columbia was concerned that failure to fix the violations could cause a buildup of carbon monoxide in the living spaces of the apartments, which in turn could cause serious illness or death to occupants.

(¶ 10} After the letters were sent, the parties engaged in discussions in an attempt to resolve the situation. The parties, however, were unable to reach a resolution.

(¶ 11} On August 13, 2008, Columbia informed Cameron Creek that it would disconnect gas service to the entire complex if Cameron Creek did not bring all apartment units into compliance with the NFG Code by October 13, 2008. Cameron Creek responded that the units complied with all applicable building codes at the time of construction and that carbon-monoxide detectors had been installed. Cameron Creek threatened legal action if Columbia refused to provide service.

(¶ 12} On September 15, 2008, Columbia sent letters directly to residents of Cameron Creek, informing them that Columbia would have to disconnect their gas service due to Cameron Creek's refusal to remedy the NFG Code violations. The letter informed residents of the potential risk of carbon-monoxide exposure and that service would be terminated at the end of October 2008 if the problem was not solved.

(¶ 13} On September 17, 2008, Cameron Creek filed a complaint against Columbia with the commission pursuant to R.C. 4905.26. The complaint alleged that Columbia had unreasonably and unlawfully threatened to disconnect gas service to all units if Cameron Creek refused to retrofit the ventilation system in each apartment. Cameron Creek estimated that it would cost a minimum of $1, 500 per apartment to comply with Columbia's demands.

(¶ 14} On October 8, 2008, the attorney examiner assigned to the case issued an entry precluding Columbia from terminating service to Cameron Creek, unless disconnection of an individual unit was necessary to prevent or resolve a present or imminent hazardous situation. By entry issued April 24, 2009, the attorney examiner granted Columbia's motion to modify the October 8 entry, clarifying that the commission's directive also precluded Columbia from refusing to reconnect gas service unless the refusal was necessary to prevent or resolve a present or imminent hazardous situation.

(¶ 15} In July 2009, a three-day hearing was held at the commission. On June 22, 2011, the commission issued its opinion and order. The commission first considered whether Cameron Creek had sustained its burden under R.C. 4905.26 of proving that Columbia's policy of enforcing the NFG Code as referenced in its tariff is unjust and unreasonable. The commission found that Columbia did not violate its tariff by applying the NFG Code and that Columbia could continue its practice of relying on and enforcing the most recent NFG Code to determine if supplying gas service to customers is safe. According to the commission, "Columbia must apply a standard of review that is in keeping with the most current safety standards enforced by the gas industry, " and both parties "agree that the NFG Code is an acknowledged ...

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