specially concurring:
I concur in the majority opinion, but I have two additional reasons. I do not want to get carried away, but I agree with the majority that the law should occasionally make sense.
Here, we have a company that saved its customers 100% on their gas bills at the expense of the company’s stockholders and, possibly, management, if management received a bonus on profits (e.g., the company is allowed a profit on gross sales, which sales, and thus the profits and bonuses, would be increased tremendously by the company becoming a daily maximum quantity (DMQ) customer as opposed to buying on the spot market). Now, we are asked to penalize the company for acting against its own self-interest and following the public policy set forth in section 1—102(a) of the Public Utilities Act "to meet their customers’ demands for public utility services at the least cost. (Ill. Rev. Stat. 1989, ch. lll⅔, par. 1—102(a).) By affirming the ICC decision, we would be encouraging or even forcing companies to strictly adhere to regulatory agencies’ rules regardless of the fact that in given circumstances the strict adherence to the rules might cause people to be hurt or killed, our environment polluted, or the public to suffer monetary losses.
The ICC, in its brief, practically admitted that the rule was out of date, nonsensical, and costly to the utility customers under the circumstances of this case and most likely in similar circumstances involving other small gas utilities. The ICC argues that its rule was reasonable when promulgated and, therefore, it must be strictly adhered to. If this reasoning were followed, then no doubt trains would have to stop at crossings in many towns that have not updated their ordinances so that the horses could cross the tracks.
The fact is that section 1—102(a) sets forth the public policy that the ICC regulations should meet the demands of the customers of utilities at the least cost. This may be prefatory or general language, but it is the intent of the legislature, which gives us some direction in interpreting specific statutes under the Public Utilities Act and the rules promulgated by the ICC and gives a basis for determining whether the ICG’s rules and regulations are unreasonable.
The intent of the legislature as shown in section 1—102(a) aids us, therefore, in interpreting the specific statute, section 9—220, which states that "[a]nnually, the Commission shall initiate public hearings *** to determine whether such purchases were prudent, and to reconcile any amounts collected with the actual costs of fuel, power or gas prudently purchased.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. lll⅔, par. 9—220.) The specific law contained in section 9—220 is not in conflict with section 1—102(a), because it should be apparent that being prudent would require Monarch to buy its gas at the least cost, unless there are exceptional circumstances not in the record, so that Monarch could pass on the savings to its customers. "Prudence” and "least cost” might be mutually exclusive terms or even a foreign language to most governments, but surely we are not going to force the private sector to act like the government. The ICC would have us hold that meeting the customers’ demands at the least cost is not the same as being prudent. Prudence, according to the ICC interpretation of the law, means buying at the highest possible cost and then socking it to the consumer.
The only thing that is out of sync with section 1 — 102(a) is the ICC’s interpretation of its rule contained in section 525.10. (83 Ill. Adm. Code § 525.10 (c) (1983).) This rule, as interpreted by the ICC, forces Monarch, by not allowing a deduction for any additional costs incurred in buying on the spot market in unusually cold years, to buy its gas at the highest cost and to charge those higher costs to their customers.
It appears to me that the ICC was not acting within the scope of its authority by reason of its violation of section 9—220 in failing "to reconcile any amounts collected with the actual costs of fuel *** prudently purchased.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. lll⅔, par. 9—220.) Further, the ICC is definitely not following the policy or intent of the legislature in forcing small gas companies to charge their customers 100% more than is possible, if the company acted "prudently.” We cannot say or hold that a decision that is indirect conflict with the statutes is legal.
It should be noted that the reason that I italicized actual in the preceding paragraph is because the actual cost of fuel under the circumstances of this case would include the additional "penalty charges.” Section 525.10(c) states that the costs of gas "shall exclude demurrage charges and penalty charges included but not limited to charges for late payment and unauthorized overruns and lost discounts.” (83 Ill. Adm. Code § 525.10(c) (1983).) There is no reason why the "penalty” incurred by Monarch should be considered an "unauthorized overrun,” when the ICC knows that the "overrun” due to exceptionally cold weather will be less than the difference in the cost of contracting for a daily maximum amount and buying on the spot market. Just because the pipeline company labels a purchase an unauthorized overrun does not mean that the ICC has to consider the overrun unauthorized. Unauthorized by whom, the pipeline company or the ICC? By using a little ingenuity, the ICC could have interpreted its rule so that it complied with sections 1—102(a) and 9—220. The decision of the ICC was, therefore, plainly erroneous, because it misinterpreted its rule by placing it in conflict with sections 1—102(a) and 9—220. Rend Lake College Federation of Teachers, Local 3708 v. Board of Community College, District, No. 521 (1980), 84 Ill. App. 3d 308, 405 N.E.2d 364.
Accordingly, I agree that the ICC decision should be reversed, but on the additional grounds that under the ICC interpretation of section 525.10(c) the ICC exceeded its authority by enforcing an interpretation of a rule that is in direct conflict with sections 1—102(a) and 9—220 and that the ICC interpretation of its own rule was plainly erroneous.