[Cite as In re Application of Am. Transm. Sys., Inc., 125 Ohio St.3d 333, 2010-Ohio-1841.]




    IN RE APPLICATION OF AMERICAN TRANSMISSION SYSTEMS, INC., ET AL;
  CITIZENS ADVOCATING RESPONSIBLE ENERGY, APPELLANT; OHIO POWER
                          SITING BOARD ET AL., APPELLEES.
                [Cite as In re Application of Am. Transm. Sys., Inc.,
                        125 Ohio St.3d 333, 2010-Ohio-1841.]
Power Siting Board — Challenged order not unlawful or unreasonable —
        Delegation of duties to administrative law judge statutorily authorized —
        Board did not abuse its discretion in conducting the hearing — Order
        affirmed.
    (No. 2009-0481 — Submitted January 26, 2010 — Decided May 4, 2010.)
            APPEAL from the Power Siting Board, No. 07-171-EL-BTX.
                                  __________________
        O’DONNELL, J.
                                       Introduction
        {¶ 1} Citizens Advocating Responsible Energy (“CARE”), a group of
landowners in and around Geauga County, appeal as of right from an order of the
Ohio Power Siting Board that authorized construction of an electric transmission
line across their properties.
        {¶ 2} CARE contends that two procedural errors invalidate the order:
first, that the board delegated its decision-making authority to an administrative
law judge (“ALJ”) in violation of R.C. 4906.02(C) and, second, that the board
improperly sealed parts of the record, unreasonably granted only a two-week
continuance when CARE had requested a four-week continuance, and ultimately
denied CARE a fair opportunity to prepare for the hearing.
        {¶ 3} In response, the Power Siting Board asserts that it—not the ALJ—
made the decision to approve the new line, and it maintains that it correctly sealed
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some of the information in the record and that it gave CARE sufficient time to
prepare for the hearing. The applicants, American Transmission Systems, Inc.,
and the Cleveland Electric Illuminating Company (collectively, “American
Transmission”), have intervened as appellees and defend the board’s order on
similar grounds.
       {¶ 4} CARE’s arguments are not well taken. The order on its face
demonstrates that the board issued it, and the record does not show that the board
denied CARE a fair opportunity to prepare for the hearing. Accordingly, we
affirm the order of the Power Siting Board.
                                     Background
       {¶ 5} In order to meet Geauga County’s growing demand for electricity,
American Transmission planned to build a new substation. A substation is a point
on the power grid where electricity, having been stepped up in voltage for more
efficient, long-distance transmission, is stepped down for distribution on smaller
lines. The needed substation would require a new transmission line, which in turn
required a new right-of-way.
       {¶ 6} To find a new right-of-way, American Transmission commissioned
URS Corporation to perform a route-selection study. URS identified hundreds of
possible routes, documented dozens of characteristics on each route, and assigned
scores to each characteristic—the more onerous or expensive the condition, the
more points assigned. URS then examined more closely the routes with the
lowest and thus best scores.
       {¶ 7} Using this study, American Transmission settled on two potential
routes. One traveled primarily along a rural road and had a greater “land use”
impact, which would have required taking several homes within the right-of-way.
The other route (ultimately preferred by the company and approved by the board)
traveled primarily across open country. It did not require the taking of any homes
but had greater ecological impact.




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        {¶ 8} In February 2007, American Transmission filed a notice with the
board of its proposal to construct a new line to serve the new substation, as well
as a public notice explaining the two routes under consideration. It then held a
public informational meeting on March 5, where affected landowners voiced their
concerns regarding each route.
        {¶ 9} On September 28, 2007, American Transmission filed its 1,300-
page application proposing the cross-country route as the preferred route and the
rural-road route as the alternate. In September and November, before any other
parties had intervened, the company sought protective, trade-secret status for
certain information, including a study that described power flows across its
network.
        {¶ 10} On January 15, 2008, CARE filed its motion to intervene.
        {¶ 11} An ALJ conducted proceedings on behalf of the Power Siting
Board. On March 3, 2008, the ALJ granted CARE’s motion to intervene and
American Transmission’s motion for a protective order. CARE did not challenge
the decision to seal parts of the record at that time.
        {¶ 12} Discovery proceeded, and CARE eventually sought information
subject to the protective order. American Transmission declined to provide the
information until it reached a protective agreement with CARE, which took
almost 14 weeks. Due to this delay, on August 7, 2008, CARE filed a motion to
continue the September 2 hearing for at least four weeks, arguing that “it [was]
not logistically possible * * * to be ready for the adjudicatory hearing by
September 2, 2008.”
        {¶ 13} One week later, on August 14, the ALJ continued the hearing until
September 16 – that is, for two weeks and not the four weeks requested by CARE.
CARE did not object to this ruling before the hearing. Though it could have, it
did not seek reconsideration, ask for interlocutory review by the board, or file
another motion for continuance.



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       {¶ 14} On September 12 – less than a week before the hearing, more than
six months after the ALJ granted the protective order, and after it had the sealed
information—CARE, for the first time, challenged the decision to seal parts of the
record. Significantly, its motion “to unseal” did not request more time to prepare.
       {¶ 15} On September 16, the first day of the hearing, the ALJ denied
CARE’s motion to unseal, as well as two unrelated motions to strike. The ALJ
then asked, “Are there any other matters, procedural matters, before we start the
testimony?” CARE’s counsel did not then object that the board had given CARE
an inadequate opportunity to prepare. Indeed, CARE’s counsel said nothing.
During oral argument, counsel stated that CARE had objected to the two-week
continuance “at the commencement of the hearing,” but the record contradicts this
assertion.
       {¶ 16} On November 24, 2008, the board issued its opinion and order
authorizing the preferred, cross-country route (with 43 additional conditions
proposed by the board’s staff). CARE timely applied for rehearing, which the
board denied on January 26, 2009. The present appeal as of right ensued. R.C.
4903.13.
                               Standard of Review
       {¶ 17} “Pursuant to R.C. 4906.12, this court must apply the same standard
of review to Power Siting [Board] determinations as we apply to orders by the
Public Utilities Commission.” Chester Twp. v. Power Siting Comm. (1977), 49
Ohio St.2d 231, 238, 3 O.O.3d 367, 361 N.E.2d 436. R.C. 4903.13 applies to
board proceedings pursuant to R.C. 4906.12 and provides that an order “shall be
reversed, vacated, or modified by this court only when, upon consideration of the
record, the court finds the order to be unlawful or unreasonable.” Constellation
NewEnergy, Inc. v. Pub. Util. Comm., 104 Ohio St.3d 530, 2004-Ohio-6767, 820
N.E.2d 885, ¶ 50. Regarding procedural matters, the board “has the discretion to
decide how * * * it may best proceed to manage and expedite the orderly flow of




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its business, avoid undue delay and eliminate unnecessary duplication of effort.”
Toledo Coalition for Safe Energy v. Pub. Util. Comm. (1982), 69 Ohio St.2d 559,
560, 23 O.O.3d 474, 433 N.E.2d 212; compare R.C. 4901.13 (authorizing the
commission to adopt “rules to govern its proceedings”) with R.C. 4906.03(C)
(authorizing the board to adopt “rules [that] are necessary and convenient to
implement this chapter”).
                              The Delegation Issue
       {¶ 18} In its first proposition of law, CARE contends that the board
“delegate[d] its statutory duties to [the ALJ] and fail[ed] to make an independent
determination that a certificate of environmental compatibility and public need
should be issued.” In support, it asserts that an ALJ drafted the order, that the
entry on rehearing admitted unlawful delegation, and that the order failed to
evaluate certain evidence.
       {¶ 19} The board and the company respond that the board—not the
ALJ—made the decision in this case. Moreover, they argue, the Revised Code
permits an ALJ to perform such tasks as presiding over a hearing, considering
evidence, and drafting a proposed order.
       {¶ 20} R.C. Chapter 4906, the board’s enabling statute, expressly allows
the board to delegate many responsibilities to subordinates. R.C. 4906.02(A)
states, “All hearings, studies, and consideration of applications for certificates
shall be conducted by the board or representatives of its members.” (Emphasis
added.) More generally, R.C. 4906.02(C) states, “The chairman of the public
utilities commission may assign or transfer duties among the commission’s staff.”
See also R.C. 4906.02(D) (“The chairman may call to his assistance * * * any
employee [of various agencies] for the purpose of making studies, conducting
hearings, investigating applications, or preparing any report required or
authorized under this chapter”).




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       {¶ 21} One responsibility, however, cannot be delegated: “the board’s
authority to grant certificates under section 4906.10 of the Revised Code shall not
be exercised by any officer, employee, or body other than the board itself.” R.C.
4906.02(C).
       {¶ 22} The order, on its face, shows that the board made that decision in
this case. Members of the board signed the order granting the certificate. The
order states, “The Ohio Power Siting Board * * * hereby issues its Opinion, Order
and Certificate * * *,” and concludes by stating, “[T]he Board approves the
application and hereby issues a certificate * * *.” On appeal, the board maintains
that “the Board itself, not the ALJ, * * * issued the certificate * * *.”
       {¶ 23} Moreover, in reviewing CARE’s claim, we presume procedural
regularity. As we have long held, “in the absence of evidence to the contrary,
public officers, administrative officers and public boards * * * will be presumed
to have properly performed their duties and not to have acted illegally but
regularly and in a lawful manner.” State ex rel. Shafer v. Ohio Turnpike Comm.
(1953), 159 Ohio St. 581, 590, 50 O.O 465, 113 N.E.2d 14. To overcome the
order’s facial validity and presumed regularity, CARE cannot rely on bare
allegations but must adduce evidence that unlawful delegation occurred.
       {¶ 24} Although CARE asserts that it has such evidence, we disagree.
For example, CARE relies on the fact that an ALJ drafted the order. But drafting
and deciding are not the same, and the Revised Code does not prohibit the board
from delegating such tasks as drafting a proposed order. See R.C. 4906.02(A)
(authorizing “representatives” of the board to “hear[], stud[y], and consider[]”
certificate applications); see also 4906.02(C) (authorizing chairman to “assign or
transfer duties among staff”).
       {¶ 25} We reject CARE’s argument, made in this vein, that the ALJ
violated Ohio Adm.Code 4906-7-16(A), which requires the filing of “a written
report” of the ALJ’s “findings, conclusions, and recommendations.” The rule




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requires an ALJ report only “[i]f ordered by the board,” id., and CARE has not
shown that the board ordered a report. Nor could CARE show prejudice; the
rehearing process provided CARE an opportunity to present the same objections
to the same board members who would have considered objections to the ALJ
report.
          {¶ 26} CARE further contends that the following statement in the entry on
rehearing “must be taken as an admission” that the ALJ made the decision below:
“Just because a proposed order is prepared by an ALJ does not mean it is not read
and closely considered by each Board member, prior to the Board meeting at
which action is to be taken.” CARE calls this statement its “best evidence” of
unlawful delegation; however, such characterization is faulty, as the statement
plainly implies that the board members “read and closely considered” the
proposed order.
          {¶ 27} Finally, CARE asserts that the order’s “fail[ure] to evaluate
unrebutted evidence” shows that unlawful delegation occurred.1 Assuming the
truth of the premise, the conclusion does not follow—numerous factors besides
unlawful delegation could explain any analytical failings in the order.
          {¶ 28} For these reasons, we reject CARE’s first proposition of law and
hold that the board did not violate R.C. 4906.02(C) by delegating its decisional
authority.
                    Adequacy of CARE’s Opportunity to Prepare
          {¶ 29} In its second proposition of law, CARE asserts that the board
incorrectly sealed parts of the record and “thereby denied an opportunity to


1. CARE does not argue that the alleged failure to evaluate unrebutted evidence itself demands
reversal. For example, a failure to evaluate evidence would arguably violate R.C. 4903.09, which
requires the board to “set[ ] forth the reasons prompting the decisions arrived at,” id., and prohibits
“summary rulings and conclusions” that do not “develop[] the supporting rationale or record,”
MCI Telecom. Corp. v. Pub. Util. Comm. (1987), 32 Ohio St.3d 306, 312, 513 N.E.2d 337; see
also R.C. 4906.11. But CARE did not raise this issue, so we do not reach it.




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prepare fully and adequately for the hearing.” The ALJ’s two-week continuance,
CARE contends, did not give it enough time to prepare.
       {¶ 30} In response, the board and the company argue that the board
correctly sealed the information and that CARE must file a mandamus action to
challenge the sealing of allegedly public records. They also assert that CARE
suffered no prejudice because it had access to the sealed information. Moreover,
they say, the ALJ gave CARE enough time.
       {¶ 31} Although the parties devote much of their briefs to the board’s
decision to seal, we need not review that decision. CARE complains that the
board, by sealing parts of the record, reduced the amount of time CARE had to
prepare. However, when CARE first objected to the sealing of the information—
six months after the protective order had been issued and four days before the
hearing—it had the sealed information in hand and did not seek a continuance.
CARE asked the board for a continuance only once, on August 7 in its motion to
continue the hearing.   Consequently, we limit our review to the decision to
continue the hearing for two weeks instead of the four weeks requested by CARE.
See, e.g., Parma v. Pub. Util. Comm. (1999), 86 Ohio St.3d 144, 148, 712 N.E.2d
724 (“we do not accept * * * objections” when appellant has “deprived the
commission of an opportunity to redress any injury or prejudice that may have
occurred”).
       {¶ 32} “Orders granting or refusing [a] continuance * * * generally rest in
the sound discretion of the commission,” and this tenet holds true for the board.
Akron v. Pub. Util. Comm. (1966), 5 Ohio St.2d 237, 241, 34 O.O.2d 467, 215
N.E.2d 366; see Chester Twp., 49 Ohio St.2d at 238, 3 O.O.3d 367, 361 N.E.2d
436. As stated in other contexts, we consider “ ‘ “the reasons presented * * * at
the time the request [for continuance] is denied,” ’ ” State v. Beuke (1988), 38
Ohio St.3d 29, 36, 526 N.E.2d 274, quoting State v. Unger (1981), 67 Ohio St.2d
65, 67, 21 O.O.3d 41, 423 N.E.2d 1078, quoting Ungar v. Sarafite (1964), 376




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                                January Term, 2010




U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921, and will not reverse for the denial of
a continuance if “no showing” is made “of what evidence could have been
produced that was omitted,” State v. Claytor (1991), 61 Ohio St.3d 234, 241, 574
N.E.2d 472.
       {¶ 33} CARE has not shown that the ALJ abused its discretion by
granting only a two-week continuance. Looking to the reasons presented to the
ALJ, see Beuke, 38 Ohio St.3d at 36, 526 N.E.2d 274, we note that CARE offered
only general reasons for its requested continuance. Although CARE asserted that
American Transmission had unreasonably delayed production of certain
materials, it did not explain in any detail why four weeks represented the
minimum reasonable continuance.         Other parties opposed CARE’s request.
Weighing the various interests, we conclude that the ALJ acted within its
discretion in granting a two-week continuance.
       {¶ 34} CARE has not shown prejudice from the exercise of discretion in
this case. CARE fails to specify what evidence or argument “could have been
produced that was omitted.” Claytor, 61 Ohio St.3d at 241, 574 N.E.2d 472.
CARE’s statements that it “could have explored” certain “possibilit[ies]” amount
to speculation, nothing more, and provide no basis for reversal. Id.; see also, e.g.,
Elyria Foundry Co. v. Pub. Util. Comm., 114 Ohio St.3d 305, 2007-Ohio-4164,
871 N.E.2d 1176, ¶ 67. Moreover, our review of the record shows that CARE did
not raise any complaint regarding the two-week continuance until after the
hearing. Although this fact suggests that CARE has waived the continuance
claim altogether, see, e.g., Parma, 86 Ohio St.3d at 148, 712 N.E.2d 724,
appellees did not raise such a defense. Nevertheless, the absence of a timely
complaint independently suggests that the board gave CARE enough time.
Accordingly, we reject CARE’s second proposition of law and affirm the board’s
procedural ruling.
                 Arguments First Raised in Reply Are Waived



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       {¶ 35} CARE argues for the first time in its reply brief that public policy
should favor burdening public lands as opposed to acquiring private property.
CARE has thus waived this argument. See State ex rel. Colvin v. Brunner, 120
Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶ 61.
                                   Conclusion
       {¶ 36} For the foregoing reasons, we affirm the order of the Power Siting
Board. No evidence shows that it delegated its decisional authority or that the
board abused its discretion in conducting the hearing.
                                                                   Order affirmed.
       LUNDBERG STRATTON, O’CONNOR, LANZINGER, and CUPP, JJ., concur.
       PFEIFER, J., concurs separately.
       BROWN, C.J., not participating.
                              __________________
       PFEIFER, J., concurring.
       {¶ 37} I concur in judgment and write separately to express concerns
about the priorities of the Ohio Power Siting Board.
       {¶ 38} The Power Siting Board comprises extremely busy public officials
who rely heavily on staff members. I am concerned that the board may not be
giving appropriate consideration to aesthetic values.
       {¶ 39} Geauga County is one of Ohio's most beautiful counties. Forbes
Magazine considers Geauga County the fourth-best place to raise a family in
America.     http://www.forbes.com/2008/06/27/schools-places-family-forbeslife-
cx_zg_0630realestate_slide_18.html.       According to its own website, Geauga
County has "the fourth largest population of Amish in the world," an indication of
the value placed on nature by the residents of Geauga County. Geauga County's
beauty should not to be taken for granted or needlessly squandered. In reviewing
the limited record before us, I find little reason to believe that the Power Siting
Board places substantial value on preserving nature or maintaining aesthetics.




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                                January Term, 2010




       {¶ 40} As our state grows, more utility resources will be needed and built,
whether wind farms, electric lines, natural-gas lines, or some other type of utility
facilities. Many factors must be considered when determining the locations of
these vital resources. Aesthetics and nature preservation should not necessarily
trump other considerations, especially when they are cost-prohibitive. When an
economically reasonable alternative is available, however, the impact on nature
and aesthetics should be of paramount importance, especially in a place as
beautiful as Geauga County. In this case, an apparently reasonable alternative
was available, along an existing highway, where the aesthetic impact would have
been minimized.
       {¶ 41} 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. For instance, in this case, American Transmission
submitted a 1,300-page application advocating its preferred route and applied for
trade-secret status. The power imbalance between utilities and ordinary Ohioans
is another reason for the Power Siting Board to ensure that it carefully considers
all relevant factors before reaching its decisions.
       {¶ 42} I am concerned that hearing officers will continue to follow the
path of least resistance, where the line is straightest or cheapest, without giving
proper consideration to other values prized by Ohioans. The members of the
Power Siting Board should ensure that their staff members are aware of the
importance of preserving nature and scenery when considering sites for utility
resources, without of course unduly sacrificing economic impact. Our state will
need to develop more utility resources while endeavoring to retain its natural
beauty. The Power Siting Board must endeavor to achieve both objectives.
                               __________________
       Taft, Stettinius & Hollister, L.L.P., Thomas J. Lee, and Julia A. Crocker,
for appellant, Citizens Advocating Responsible Energy.



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       Richard Cordray, Attorney General, and Thomas G. Lindgren, Duane W.
Luckey, and Thomas W. McNamee, Assistant Attorneys General, for appellee,
Ohio Power Siting Board.
       Porter, Wright, Morris & Arthur, L.L.P., Christopher J. Schraff, Robert J.
Schmidt, and L. Bradfield Hughes; and Morgan E. Parke, for intervening
appellees, American Transmission Systems, Inc., and Cleveland Electric
Illuminating Company.
       McNees, Wallace & Nurick, L.L.C., Samuel C. Randazzo, Lisa G.
McAlister, and Joseph M. Clark, urging affirmance for amicus curiae, Industrial
Energy Users – Ohio.
                           ______________________




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