Public utilities and building codes
Justice Paul E. Pfeifer
Cameron Creek Apartments is a 240 unit apartment complex located in Galloway, a Columbus suburb, consisting of 21 two-story buildings. The apartments are flats, and each has a gas furnace and water heater, and every apartment contains a hard-wired combination smoke-detector and carbon-monoxide alarm located in the main living area. In 1998, when Cameron Creek installed the gas appliances, the installations and venting configuration complied with the city’s existing building code. Columbia Gas provides natural gas to Cameron Creek. Since 1990 Columbia has used the National Fuel Gas Code (“NFG Code”) as a reference standard for evaluating the safety of residential gas lines and appliance installations and venting. The NFG Code is a model code written by a private organization that sets recommended standards for gas piping and appliances. Columbia considers violations of the NFG Code to be a significant safety hazard and a threat to human life.
In 2006, Columbia began “red tagging” gas appliances at Cameron Creek, citing violations of the NFG Code. Under Columbia’s red-tag policy, service technicians are required to turn off the gas supply and red tag a gas appliance that’s deemed unsafe. Columbia wouldn’t reestablish gas service until the customer arranged for a qualified repairman to make repairs.
In early 2008, Columbia sent letters to Cameron Creek stating that the ventilation of the furnaces and water heaters didn’t comply with the NFG Code and that remedial measures needed to be taken to ensure tenant safety. After the letters were sent, both parties engaged in discussions, but no resolution was reached.
In August 2008, Columbia informed Cameron Creek that it would disconnect service to the entire complex if all units weren’t brought into compliance with the NFG Code by October. Cameron Creek responded that the units complied with all applicable building codes at the time of construction and that carbon-monoxide detectors had been installed. Eventually, Cameron Creek filed a complaint against Columbia with the Public Utilities Commission of Ohio, alleging that Columbia had unreasonably and unlawfully threatened to disconnect gas service if Cameron Creek didn’t retrofit the ventilation system in each apartment, at a cost of $1,500 per unit.
The Commission prevented Columbia from disconnecting service, and after a hearing, issued its report and order. When there is a verifiable safety hazard, the Commission said, Columbia has the right to disconnect gas service and to require customers to address the issue. But the Commission concluded that no verifiable safety hazard existed at Cameron Creek. The Commission stated that Columbus had deemed Cameron Creek safe when it issued permits under the building codes in effect in 1998, and that the complex was still in compliance with all applicable building codes.
Thus, the Commission concluded that Columbia couldn’t threaten to disconnect service and force Cameron Creek to conform to current NFG Code requirements based merely on a potential safety hazard.
After the Commission denied a rehearing, Columbia filed an appeal with us – the Ohio Supreme Court. Columbia raised several issues on appeal, but the question was whether Columbia could shut off service in order to compel Cameron Creek’s owners to retrofit each apartment to conform to current NFG Code standards. At the time of construction, Cameron Creek modified its original building plans to add a four-inch fresh-air-supply duct that was designed to bring outdoor air into each apartment’s mechanical room. Thereafter, Columbus – concluding that the installation and venting of the water heaters and furnaces complied with all applicable codes – issued building and occupancy permits to Cameron Creek.
Columbia didn’t inspect the gas appliances at the complex in 1998 to determine whether they were in compliance with the NFG Code because the Commission’s rules didn’t require the company to inspect appliance installations at that time.
In its opinion and order, the Commission placed significant weight on the fact that the dwellings at Cameron Creek met the standards for construction under the codes in effect in 1998. According to the Commission, Cameron Creek was still safe and in compliance because it hadn’t undergone any renovations since that time.
The Commission held that Cameron Creek met the “current” NFG Code’s allowance for alternative compliance methods because of the addition of the fresh-air-supply duct at the time of construction.
The Commission stated that the NFG Code allows for “alternative and specially engineered solutions” as other methods of meeting the safety standards in the code. The Commission noted that when Cameron Creek modified its original building plans to add the fresh-air-supply duct, it submitted engineering calculations from a licensed professional engineer verifying that it was adequate for the gas appliances. According to the Commission, the modified building plan qualified as an alternative-compliance method that was approved by the city, and it effectively brought Cameron Creek into compliance with the current NFG Code.
Columbia challenged the Commission’s finding that Cameron Creek had met the alternative compliance provision of the NFG Code. But Columbia bears the burden of demonstrating reversible error, and to the degree that Columbia identified any error, it did not show that such error caused harm to Columbia.
The critical problem was that Columbia didn’t challenge the Commission’s finding that Cameron Creek’s venting installations were deemed safe because they complied with the local building codes enforced by Columbus. Columbia needed to negate the Commission’s findings that the venting installations are safe under the applicable building codes and that there is no existing safety threat at Cameron Creek. Yet Columbia didn’t challenge any of the evidence supporting the Commission’s findings. It didn’t challenge the qualification of any experts; it didn’t point to any contrary testimony or cross-examination that would call testimony into question; it didn’t dispute that the city’s building codes permitted the type of ventilation installed by Cameron Creek at the time of construction; and it didn’t contend that the NFG Code supersedes the city’s building codes.
In the end, Columbia did not demonstrate prejudice, which it must in order to obtain reversal of a Commission order. Therefore, by a seven-to-zero vote, we affirmed the Commission’s order.
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