'7 ORI. a^'t 5 4 Il12 CLERK OF COURT SUPREME COURT OF OHIO IN THE SUPREME COURT OF OHIO. Case No. Appellees,

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1 ORI IN THE SUPREME COURT OF OHIO In the Matter of the Complaint of The K&D Group, Inc. and Reserve Apartments, LTD, Appellees, Case No. On Appeal from the Public Utilities Commission of Ohio '7 V. Cleveland Thermal Steam Distribution, LLC, Public Utilities Commission of Ohio Case No HT-CRC Appellant. NOTICE OF APPEAL OF APPELLANTS THE K&D GROUP, INC. AND RESERVE APARTMENTS, LTD Laura C. McBride ( ) Counsel of Record James F. Lang ( ) CALFEE, HALTER & GRISWOLD LLP 1405 East Sixth Street Cleveland, OH (216) (216) (fax) lmcbride@calfee.com jlar^g@calfee.com Attorneys for Appellants Gretchen J. Hummel Counsel of Record Scott E. Elisar MCNEES WALLACE & NURICK LLC 21 East State Street, 17th Floor Columbus, OH (614) (614) (fax) ghummel@mwncmh.com sel isara,mwncmh.com Attorneysfor Appellee ( ^ a^'t 5 4 Il12 { DOC;1 } CLERK OF COURT SUPREME COURT OF OHIO

2 Appellants, The K&D Group, Inc. and Reserve Apartments LTD (collectively the "Appellants"), hereby give notice of their appeal to the Supreme Court of Ohio from the Entry of the Public Utilities Commission of Ohio (the "Commission"), entered in Case No HT- CSS and rendered on May 30, 2012, and the Entry on Rehearing rendered by the Commission on August 8, 2012, denying the Appellants' Application for Rehearing, which granted Cleveland Thermal Steam Distribution, LLC's Motion to Dismiss (the "Motion"). True and accurate copies of the Commission's May 30, 2012 Entry and the August 8, 2012 Entry on Rehearing are attached hereto as Exhibits A and B, respectively, and are incorporated herein by reference. The Appellants complain and allege that the Commission's May 30, 2012 Entry and the August 8, 2012 Entry on Rehearing are unlawful and unreasonable in the following respects: 1. The Commission acted unlawfully and unreasonably in finding that, between 2007 and 2010, Cleveland Thermal charged Appellants fuel costs that were approved by the Commission. 2. The Commission acted unlawfully and unreasonably in finding that Cleveland Thermal charged Appellants under the Fuel Adjustment Rider between 2007 and 2010 in accordance with the Commission's Orders. 3. The Commission acted unlawfully and unreasonably in finding that the "fuel adjustment ratio" incorporated into Appellants' special contract does not encompass the Commission's requirements for oversight of Cleveland Thermal's fuel costs as set forth in the tariff and in the Commission's Orders. 4. The Commission acted unlawfully and unreasonably in finding that Cleveland Thermal complied with its tariff and/or Appellants' special contract, between 2007 and 2010, in imposing costs on Appellants under the Fuel Adjustment Rider. { DOC;I } I

3 5. The Commission acted unlawfully and unreasonably in finding that Cleveland Thermal complied with its tariff and/or Appellants' special contract between 2007 and 2010 by submitting certain fuel cost information to Commission Staff. 6. The Commission acted unlawfully and unreasonably by ignoring Cleveland Thermal's failure to comply with the Commission's Order in Case No HT-AIR between 2007 and The Commission acted unreasonably and unlawfully in finding that the sole basis for Appellants' Complaint is that Cleveland Thermal's past rates were unreasonable and should not have been charged to Appellants. 8. The Commission acted unreasonably and unlawfully in finding that Cleveland Thermal's failure to submit to the oversight of its fuel charges required by law and Commission Orders does not constitute reasonable grounds for a complaint against Cleveland Thermal. WHEREFORE, the Appellants respectfully submit that the Commission's May 30, 2012 Entry and its August 8, 2012 Entry on Rehearing are unlawful and unreasonable, and should be reversed with judgment entered in favor of the Appellants. Respectfully submitted, L qvrh C Laura C. McBride Counsel of Record for Appellants /DVl /d(o6i^a?^3) { DOC;1 } 2

4 CERTIFICATE OF FILING AND SERVICE In accordance with Sections (A) and of the Ohio Administrative Code, a copy of the foregoing Notice ofappeal ofappellants The K&D Group, Inc. and Reserve Apartments, LTD has been filed this 4th day of October, 2012, with the docketing division of the Public Utilities Commission of Ohio, and has been served by leaving a copy at the offices of the Commission, 180 East Broad Street, 12th floor, Columbus, Ohio C.a^'-^ G (gg&l;d-c//u One of the Attorneys for Appe llants CERTIFICATE OF SERVICE A copy of the foregoing Notice of Appeal of Appellants The K&D Group, Inc. and Reserve Apartments, LTD has been served by regular U.S. mail, postage prepaid, this 4th day of October, 2012, upon the following: Gretchen J. Hummel Scott E. Elisar McNees Wallace & Nurick LLC 21 East State Street, 17th Floor Columbus, OH C,4v ti C. M C6r,-d'( INT4 (UOgo) ( 3 One of the Attorneys for Appellants { DOC;1 ) 3

5 EXHIBIT A

6 BEFORE THE PUBLIC UTILITIES COMMISSION OF OHIO In the Matter of the Complaint of The K&D Group, Inc. and Reserve Apartments, LTD, Complainants, V. Case No HT-CSS Cleveland Thermal Steam Distribution, LLC, Respondent. ENTRY The Commission finds: (1) On February 18, 2011, The K&D Group, Inc. (K&D) and Reserve Apartments, LTD (Reserve) (collectively, Complainants), filed a complaint against Cleveland Thermal Steam Distribution, LLC (Cleveland Thermal). On March 1, 2011, Cleveland Thermal filed its answer. (2) Pursuant to entry issued on March 9, 2011, a settlement conference was held on April 13, 2011, but the parties were unable to resolve their dispute. During the settlement conference, the parties consented to September 2011 as the time period for any resulting hearing. (3) On April 27, 2011, the attorney examiner set this case for hearing on September 8, (4) On May 11, 2011, Cleveland Thermal filed a motion to dismiss, arguing that K&D's complaint failed to state reasonable grounds as required by Section , Revised Code. Specifically, Cleveland Thermal states that, in 2001, it entered into a special arrangement with K&D for steam service (2001 Arrangement), which was approved by the Commission in Case No HT-AEC. Thereafter, Cleveland Thermal states that the parties amended the 2001 Arrangement in 2007 (2007 Amendment), which was approved by the Commission in Case No HT-AEC. C7eveland Thermal continues that

7 HT-CSS -2- the 2007 Amendment incorporates the fuel adjustment rider (FAR) schedule contained in Cleveland Thermal's Tariff, P.U.C.O. No. 1, Original Sheet No. 16, and that the FAR tariff, effective February 18, 2005, was approved by the Commission in Case No HT-UNC, and was identical to the previous FAR Tariff approved in Case No HT-SLF, Finding and Order (November 20,1990). Cleveland Thermal contends that it is well-established that a complaint solely alleging that approved rates should not be charged fails to set forth reasonable grounds under Section , Revised Code, citing Gannis v. The Cleveland Electric Illuminating Co., Case No EL-CSS, Entry (May 11, 1992); Hughes v. The Cleveland Electric Illuminating Company, Case No EL-CSS, Entry (September 1, 1994); Seketa v. The East Ohio Gas Co., Case No GA-CSS, Entry (August 9, 2006). Cleveland Thermal argues that K&D does not claim that Cleveland Thermal failed to calculate and bill the FAR charges in accordance with the terms of the 2001 Agreement, 2007 Amendment, or Sheet No. 16 but instead argues that it should not be charged the approved rates because those rates are unreasonable, unjust, and unlawful. Cleveland Thermal concludes that, according to the precedent cited above, K&D's complaint should be dismissed. (5) On May 31, 2011, K&D filed an opposition to Cleveland Thermal's motion to dismiss, arguing that its complaint provides reasonable grounds for alleging that Cleveland Thermal's fuel charges are unlawful. In conjunction with its opposition to Cleveland Thermal's motion to dismiss, K&D filed a request for leave to file an amended complaint and attached its amended complaint. In Count One of its amended complaint, K&D argues that Cleveland Thermal increased its FAR rates without Commission approval after September 27, 2007, and that the increases were unlawful because they violated the Tariff and Commission orders. In support, K&D 'asserts that, in 1997, Cleveland Thermal sought a rate increase in Case No HT-AIR, in which the Comrnission issued an opinion and order (1998 Opinion and Order) requiring Cleveland Thermal to "comply with all Conunission directives set forth in this opinion, and order and adopt and implement the

8 HT-CSS -3- recommendations of the staff," and submit its fuel costs "for review on an annual basis." K&D states that no docket has been established for the annual review of Cleveland Thermal's fuel procurement processes and costs as required by the 1998 Opinion and Order; that no docket has been established for Cleveland Thermal's monthly filings of its fuel costs as required by the FAR; and that Cleveland Thermal has occasionally submitted to Staff a one-page spreadsheet of its fuel costs but that the costs have not been filed with the Commission or subjected to review. K&D further states that, in October 2007, its FAR charges under. Schedule B were $9.00/Mlb of steam energy service, which increased to $17.50/Mlb in August K&D states that the FAR rate remained over $15.00/Mlb through March 2009, and above $12.00/MIb through November K&D states that none of the FAR rate increases were reviewed or approved by the Commission. Further, K&D asserts that Cleveland Thermal's fuel contracts reflect that it purchased its fuel from 2007 through mid-2009 only through spot-market purchases and without any long-term contracts. Further, K&D asserts that, during , the fuel market was volatile leading to price increases. Additionally, in Count Two, K&D argues that Cleveland Thermal's fuel costs between 2007 and 2010 were not prudently incurred, as the spot-market was subject to excessive prices that could have been mitigated if reasonable procurement practices had been established. K&D argues that, as a result, Cleveland Thermal's FAR charges between 2007 and 2010 were not just and reasonable. K&D calculates that, between October 2007 and December 2010, it paid over $350,000 in additional FAR charges when cornpared to the $9.00/Mib FAR charge. (6) On June 9, 2011, Cleveland Thermal filed a reply to K&D's opposition to Cleveland Thermal's motion to dismiss and a memorandum contra K&D's request for leave to file an amended complaint. In its reply, Cleveland Thermal first argues that K&D's complaint, even as amended, does not state reasonable grounds for complaint as required by Section , Revised Code. Specifically, Cleveland Thermal argues that it was permitted to calculate its fuel charges and apply them to customers' bills consistent with the provisions. of its

9 HT-CSS -4- approved tariff and applicable special contracts and is unaffected by the fact that the Commission did not conduct annual reviews. (7) By entry issued on June 16, 2011, the attorney examiner granted K&D's motion for leave to file an amended complaint and ordered Cleveland Thermal to file an answer to the amended complaint. (8) On July 5, Cleveland Thermal filed an answer and affirmative defenses to K&D's amended complaint. (9) Thereafter, on July 15, 2011, Cleveland Thermal filed a supplemental motion to dismiss and memorandum in support. In its supplemental motion to dismiss, Cleveland Thermal initially argues that K&D's June 16, 2011, motion and amended complaint fail to comply with the requirements of Rules and , O.A.C., respectively, because the motion does not contain a memorandum in support and the amended complaint is unsigned. Cleveland Thermal sets forth two substantive arguments in support of its supplemental motion to dismiss: first, K&D's amended complaint fails to state reasonable grounds for complaint as required by Section , Revised Code, and second, K&D's amended complaint lacks the coherence necessary to support a finding that reasonable grounds for a complaint have been stated. Cleveland Thermal irritially argues that K&D's complaint, even as amended, fails to set forth reasonable graunds as required under Section , Revised Code. Specifically, Cleveland Thermal contends that K&D admitted in its complaint that steam service was provided pursuant to a special contract as a result of tile 2001 Agreement and 2007 Amendment. Cleveland Thermal reiterates that K&D has not alleged that Cleveland Thermal failed to calculate and bill the FAR charges according to the 2001 contract and 2007 amendment. Next, Cleveland Thermal argues that K&D falsely claims that Cleveland Thermal failed to enter into any long-term contracts from 2007 through mid-2009 but procured fuel only on the spot market. In contrast, Cleveland Thermal asserts that a review of its contracts discloses a number of contracts with terms of oneyear and at least two contracts with multi-year terms.

10 HT-CSS Additionally, Cleveland Thermal argues that K&D has offered no support for its argument that excessive prices could have been mitigated if Cleveland Thermal had established reasonable procurement practices, particularly given that K&D admitted in its amended complaint that the fuel market was volatile and experienced price increases in Finally, Cleveland Thermal points out that the 2007 amendment governing fuel charges provides, in pertinent part: e. Fuel Adjustment Rider. Company shall ascertain the weighted average cost of fuels bumed by Company for steam utility service for each month (including all direct costs incurred by Company to place fuel at the point of burning in the boilers at plants in which steam is generated for sale under this Agreement) and may file that cost (expressed as cents per million BTU) with PUCO on a monthly basis. The Customer's rates shall be increased each month by applying the fuel adjustment rider schedule ratio (contained in Sheet 16 of the PUCO approved tariffs of Company) for each full 0.1 of the monthly cost of fuel per million BTU. In the event Sheet 16 is cancelled by the PUCO, the fuel adjustment rider will still apply. Based upon this language, Cleveland Thermal argues that the only part of Sheet No. 16 of its Commission-approved tariffs that is incorporated into K&D's contract is FAR schedule ratio. Further, Cleveland Thermal points out that, according to the language, Cleveland Thermal may file its weighted average with the Commission on a monthly basis, and argues that this indicates it is not required to do so. Cleveland Thermal concludes that the 2007 amendment is controlling as to FAR charges and that K&D lacks standing to complain about its FAR charges on any basis not provided for in the amendment. In the second part of its argument, Cleveland Thermal contends that the amended complaint lacks the coherence necessary to support a finding that reasonable grounds for complaint have been stated. Specifically, Cleveland Thermal argues that K&D's argument, that Cleveland Thermal's fuel

11 HT-CSS -6- charges have not been reviewed annually is incoherent because the special contract for service does not require annual reviews and that K&D has failed to acknowledge that the calculation and billing provision for its steam service fuel charges is governed by the special contract. Finally, Cleveland Thermal contends that K&D's complaint is incoherent because it argues that Cleveland Thermal's fuel procurement practices from 2007 to 2010 caused excessive fuel prices, while admitting that the fuel market was volatile during 2007 to 2010 and prices increased. (10) Thereafter, on July 20, 2011, K&D filed a signed copy of its amended complaint. Additionally, on August 1, 2011, K&D filed an opposition to Cleveland Thermal's supplemental motion to dismiss. In this opposition to the supplemental motion to dismiss, K&D argues that it has standing to bring its complaint under Section , Revised Code, and reiterates its prior arguments. (11) On August 9, 2011, K&D filed a motion to continue the September 8, 2011, hearing as well as a motion to compel discovery. (12) On August 11, 2011, Cleveland Thermal filed a reply to the K&D's opposition to Cleveland Thermal's supplemental motion to dismiss, again requesting that K&D's complaint be dismissed and reiterating its prior arguments. (13) By entry issued on August 16, 2011, the attorney examiner granted K&D's motion to continue the September 8, 2011, hearing on the basis that Qeveland Thermal's motions to dismiss remained pending. (14) The Commission notes that when a motion to dismiss is being considered, all material allega<ions must be accepted as true and construed in favor of the non-moving party. In the Matter of the Complaint of XO Ohio, Inc. v. City of Upper Arlington, Case No AU-PWC, Entry on Rehearing (July 1, 2003). In this case, accepting all material allegations of the complaint as true and construing such facts in favor of complainant, the facts demonstrate that Cleveland Thermal provided K&D with steam energy service pursuant to a special contract executed in 2001 under Section , Revised Code; that the special

12 HT-CSS -7 - contract was approved by the Commission in Case No HT-AEC; and that the agreement was amended in 2007 and approved by the Commission in Case No HT-AEC. Further, the plain language of the 2007 amendment requires K&D's monthly rates to be increased each month by applying the FAR schedule contained in Sheet No. 16 of Cleveland Thermal's tariff, which was approved by the Commission in Case No , and again in Case No HT-UNC, with an effective date of February 18, The Commission further notes that it is well-established that complaints alleging solely that Commission-approved rates should not be charged or solely questioning the reasonableness of Commission-approved rates do not constitute reasonable grounds for complaint. Pavicic v. The East Ohio Gas Company d/b/a Dominion East Ohio, Case No GA-CSS, Entry (July 15, 2011); Gannis v. The Cleveland Electric Illuminating Company, Case No EL-CSS, Entry (May 14, 1994); Hughes v. The Cleaeland Electric Illuminating Company, Case No EL-CSS, Entry (September 1, 1994); Avery Dennison Conrpany v. The East Ohio Gas Company d/b/a Dominion East Ohio, Case No GA-CSS, Entry (December 14, 2000); Seketa v. The East Ohio Gas Company d/b/a Dominion East Ohio, Case No GA-CSS, Entry (August 9, 2006). The Commission finds that K&D's sole basis for complaint in this proceeding is its claim that Cleveland Thermal's past rates, which were approved by the Commission as set forth above, were unreasonable and should not have been charged to K&D. Based on the well-established Commission precedents, as well as the undisputed facts of this case, the Commission finds that K&D has failed to set forth reasonable grounds for complaint as required by Section , Revised Code. Further, the Cozninission notes that the FAR charges were periodically filed with Commission Staff for review as provided for by the Tariff. The scope of Staff's review was not within the control of Cleveland Thermal, and, to the extent that K&D claims that Staff's review was insufficient or inadequate, such claim does not constitute reasonable grounds for complaint against Cleveland Thermal. Therefore, Cleveland ThermaPs motion to dismiss is granted, and the complaint is dismissed.

13 HT-CSS -8- It is, further, (15) Finally, with respect to rates to be charged by Cleveland Thermal in the future, the Commission notes that a docket was opened in Apri12011 in In the Matter of the Filing of the Monthly Fuel Adjustment Rider of Cleveland Thermal Steam Distribution, LLC, Case No HT-RDR, in which Cleveland Thermal ascertained and filed its weighted average cost of fuel burned for central steam service for each month in In 2012, a docket was opened in Case No HT-RDR, in which Cleveland Thermal has been filing its nionthly fuel adjustment rider information for each month in It is, therefore, ORDERED, That Cleveland Thermal's motion to dismiss the complaint is granted. ORDERED, That Case No HT-CSS is dismissed. It is, further, ORDERED, That a copy of this Entry be served upon all parties of record. THE PUBLIC UTILITIES COIvIMISSION OF OHIO ToddvAlSrXchler, Chairman Andre T. Porter MLWJsc Entered in the Journal MAY -2-^ A"`17 ^/'-, Barcy F. McNeal Secretary

14 EXHIBIT B

15 BEFORE THE PUBLIC UTILrrIES COMMISSION OF OHIO In the Matter of the Complaint of The K&D ) Group, Inc. and Reserve Apartments, LTD, ) ) Complainants, ) ) v. ) ) Cleveland Thermal Steam Distribution, LLC, ) ) Respondent. ) Case No HT-CSS ENTRY ON REHEARI.NG The Commission finds: (1) On February 18, 2011, The K&D Group, Inc. (K&D) and Reserve Apartments, LTD, filed a complaint against Cleveland Thermal Steam Distribution, LLC (Cleveland Thermal). On March 1, 2011, Cleveland Thermal filed its answer. (2) On May 11, 2011, Cleveland Thermal filed a motion to dismiss, arguing that K&D's complaint failed to state reasonable grounds as required by Section , Revised Code. On May 31, 2011, K&D filed an opposition to Cleveland Thermal's motion to ilismiss, to which Cleveland Thermal replied on June 9, (3) By entry issued on May 30, 2012, the Commission granted Cleveland Thermal's motion to dismiss K&D's complaint on the basis that K&D failed to set forth reasonable grounds for complaint as required by Section , Revised Code. (4) On June 29, 2012, K&D filed an application for rehearing of the Commission's May 30, 2012, entry granting Cleveland Thermal's motion to dismiss. (5) Thereafter, on July 2, 2012, Cleveland Thermal filed a motion for an extension of the ten-day time period set forth in Rule , Ohio Administrative Code, for filing a

16 HT-CSS -2- memorandum contra. By entry issued on July 3, 2012, the attomey examiner granted Cleveland Thermal's motion. (6) By entry issued on July 18, 2012, the Commission granted K&D's application for rehearing for the limited purpose of allowing further consideration of the matters specified in the application for rehearing. (7) In its application for rehearing, K&D argues that the Commission s May 30, 2012, dismissal entry (dismissal entry) unlawfully and unreasonably found that the rates charged by Cleveland Thermal under its Fuel Adjustment Rider (FAR) from 2008 through 2010 were approved by the Commission. K&D argues that Cleveland Thermal did not make monthly filings with the Commission in accordance with its tariff and that Cleveland Thermal failed to submit its fuel procurement processes for annual review in accordance with In re Cleveland Thernaal Energy Corporation, Case No HT-AIR, Opinion and Order (Oct. 15, 1998) (1998 Rate Case). Further, K&D argues that Cleveland Thermal's fuel charges and costs lacked any oversight for over ten years. In its memorandum in support of its application for rehearing, K&D initially argues that, in order to be approved, fuel charges are required to be imposed in accordance with applicable tariffs and Commission orders, pursuant to Section , Revised Code. Here, K&D argues that its special contract with Cleveland Thermal required "monthly rates to be increased each month by applying the FAR schedule contained in Sheet No. 16 of Cleveland Thermal's tariff." K&D states that its FAR tariff contained in Sheet No. 16 explicitly requires that "the weighted average cost of fuel burned for central steam service each month shall be ascertained by the Company and filed monthly with the Public Utilities Commission of Ohio." K&D contends that, in contrast to the Coinmission s findings in its dismissal entry, Cleveland Thermal did not file its fuel costs monthly with the Commission. K&D acknowledges that Cleveland Thermal provided the fuel costs to Staff for review but argues that this is not the equivalent of filing with the Commission, citing In re Cincinnati Gas & Electric, Case No GA-GPS, Entry (Mar. 2, 2005) at 5.

17 HT-CSS -3- Next, K&D argues that the dismissal entry ignores the Corrunissiori s own intervening order regarding oversight of Cleveland Thermal's fuel charges and costs set forth in the 1998 Rate Case. K&D argues that the 1998 Rate Case required Cleveland Thermal to "comply with all Comnussion directives set forth in this opinion and order and adopt and implement the recommendations of the Staff as set forth in the staff report." 1998 Rate Case, Opinion and Order (Oct. 15, 1998) at 8. K&D points out that the 1998 Rate Case order further provided that Staff recommended that "the applicant's fuel costs be reviewed on an annual basis[.] * * * We agree with Staff and direct the applicant to fully comply with the recommendations and to include in the * * * 6-month report a description of its progress in implementing the staff's recommendations." Id. at 6. (8) In its memorandum contra, Cleveland Thermal responds that the fuel charges billed to K&D by Cleveland Thermal were approved by the Commission. Cleveland Thermal points out the Commission already considered these claims by K&D and rejected them. Specifically, Cleveland Thermal contends that the fuel charges were govemed by the terms of the 2007 amendment to the special arrangement, which provided, in pertinent part: e. Fuel Adjustment Rider. Company shall ascertain the weighted average cost of fuels burned by Company for steam utility service for each month (including all direct costs incurred by Company to place fuel at the point of burning in the boilers at plants in which steam is generated for sale under this Agreement) and may file that cost (expressed as cents per million BTU) with PUCO on a monthly basis. The Customer's rates shall be increased each month by applying the fuel adjustment rider schedule ratio (contained in Sheet 16 of the PUCO approved tariffs of Company) for each full 0.1 of the monthly cost of fuel per million BTU. In the event Sheet 16 is cancelled by the PUCO, the fuel adjustment rider will stilt apply.

18 HT-CSS -4- Cleveland Thermal stresses that this fuel adjustment rider schedule ratio is the only part of Sheet 16 that is incorporated into its special contract with K&D. Further, Cleveland Thermal notes that the above Fuel Adjustment Rider language provides that the Company may file that cost with the Commission on a monthly basis but does not require that action. Additionally, Cleveland Thermal argues that, even if the monthly fuel cost provisions of Sheet 16 were applicable to the special contract, the Commission found in the dismissal entry that Cleveland Thermal did actually provide this information to the Commission for review and that the scope of any Staff review conducted on that information was outside of Cleveland Thermal's control. Next, Cleveland Thermal contends that K&D is erroneous in its belief that the Commissiori s approval of Sheet 16 was conditioned on monthly filing of fuel cost information, as K&D cites no language or Commission order supporting this conclusion that the fuel charge mechanism is conditional upon monthly fuel cost filings with the Commission. Further, Cleveland Thermal notes that K&D has failed to explain why the fuel cost filing requirements in the tariff are applicable to the special contract, given that the tariff provision differs from the 2007 amendment, paragraph e, of the special contract. (9) As discussed in the dismissal entry, the Commission has found that the undisputed facts of this case demonstrate that: Cleveland Thermal provided K&D with steam energy service pursuant to a special contract executed in 2001 under Section , Revised Code; the special contract was approved by the Commission in Case No HT-AEC; and the agreement was amended in 2007 and approved by the Commission in Case No HT-AEC. As pointed out by Cleveland Thermal, as well as the Commission in its dismissal entry, the 2007 amendment to Cleveland Thermal and K&D's special contract specifically provides that "Company shall ascertain the weighted average cost of fuels for each month * * * and may file that cost * * * with PUCO on a monthly basis." Thus, the governing portion of the contract does not require Cleveland Thermal to file the costs on a monthly basis. Further, although K&D argues that provisions regarding filing contained within Sheet 16 itself are applicable, the Commission finds that the only portion of

19 HT-CSS -5- further, Sheet 16 that is incorporated into the special contract between Cleveland Thermal and K&D is the fuel adjustment rider schedule ratio. This limited incorporation is further apparent given the language contained in the special contract providing that "in the event Sheet 16 is cancelled by the PUCO, the fuel adjustment rider will still apply." Additionally, the Commission finds that, even if the monthly filing provisions of Sheet 16 were applicable to the special contract between Cleveland Thermal and K&D, Cleveland Thermal nevertheless complied with its obligation under the filing requirements, as it is undisputed that Cleveland Thermal provided monthly filings to the Commission Staff. Although K&D cites In re Cincinnati Gas & Electric, Case No GA-GPS, Entry (Mar. 2, 2005), for the proposition that filing with Staff is not equivalent with filing with the Commission, the Commission finds that the language in In re Cincinnati Gas & Electric concerns a public information/protective order and is not persuasive in this matter. Finally, the Commission notes that, as discussed in the dismissal entry, Cleveland Thermal periodically filed the FAR charges with Staff as provided in the tariff and special contract, and that the scope of any review by Staff was not within the control of Cleveland Thermal. Consequently, K&D's argument that Cleveland Thermal's FAR charges lacked oversight appears to be directed at the sufficiency of Staff's review, which does not constitute reasonable grounds for complaint against Cleveland Thermal. I (10) Therefore, the Commission finds that K&D has failed to demonstrate a basis for its claims that the dismissal entry was unlawful and unreasonable. Accordingly, rehearing should be denied. It is, therefore, ORDERED, that the application for rehearing filed by K&D be denied. It is,

20 HT-CSS -6- record. ORDERED, that a copy of this entry on rehearing be served upon all parties of THE PUBLIC UTILITIES COMMISSION OF OHIO MLW/sc u Entered ^ ejq^ v. ^"l'tt ^KeR.P Barcy F. McNeal Secretary