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-3301

IN 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

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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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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.

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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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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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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.

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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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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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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.

_________________

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