SMITH, Presiding Judge.

MXenergy Inc. appeals from a superior court judgment affirming a decision of the Georgia Public Service Commission ("the commission").1 It did not err in so doing, and we therefore affirm the judgment of the superior court.

The dispute in this action arises from the "true up settlement process" applied to natural gas marketers by the commission, as discussed in our earlier decision of Infinite Energy v. Georgia Public Svc. Comm., 257 Ga.App. 757, 572 S.E.2d 91 (2002):

(Footnote omitted.) Id. at 757, 572 S.E.2d 91. In Infinite Energy, we affirmed the superior court's decision to affirm the commission's adoption of a true up process that was proposed by Atlanta Gas Light and marketers in 1999. Id. at 758, 572 S.E.2d 91.2 In the case before us, we address the application of that true up process to a shortfall created by the bankruptcy of a marketer.

In 2008, Catalyst Natural Gas, LLC filed for bankruptcy, at a time when it had supplied less gas than its customers actually consumed, and thus, as we discussed in Infinite Energy, supra, 257 Ga.App. at 757, 572 S.E.2d 91, had sold gas to its customers that it had not tendered to Atlanta Gas Light. The superior court and the parties refer to this as a "short" position on the part of the marketer. Catalyst's "short" position meant that, ordinarily, it would pay other marketers in a "long" position for the gas imbalance, but "[a]lthough many of the long marketers have filed proof of claims against Catalyst in bankruptcy court, as unsecured creditors it is unlikely that there will be any appreciable distribution of funds to them."

Atlanta Gas Light and eight marketers filed with the commission a "Joint Petition of Marketers for Recovery of the Catalyst Shortfall." In that petition, the marketers asserted that Catalyst's "abrupt exit from the Georgia natural gas market left it owing the True-Up participants for several months' worth of gas imbalances" and that "long" marketers were "left without any means through the approved process to recover their respective losses short of raising prices to their customers or absorbing the loss." Arguing that other methods would impose costs directly on customers or on only some marketers, they requested that, in the exercise of the commission's discretion, certain penalties assessed against marketers and certain profit-sharing monies be redirected from the universal service fund or USF3 "to resolve the Catalyst shortfall recovery issue" by paying the marketers for Catalyst's outstanding shortfall.

After considering various responses to the petition in administrative session, the commission determined that it would temporarily divert discretionary funds from the universal service fund to Atlanta Gas Light and the marketers, to the extent of sixty percent of the Catalyst shortfall. Upon motion for reconsideration by MXenergy and one other marketer, asserting for the first time that a constitutional "takings" issue was implicated, the commission declined to reconsider its order, noting:

MXenergy appealed to the superior court, contending that the commission's failure to compensate it for one hundred percent of its share of the Catalyst shortfall amounted to a "taking" in violation of the Georgia and United States Constitutions. U.S. Const. amend. V; Ga. Const. of 1983 Art. I, Sec. III, Par. I. After receiving briefs and conducting a hearing, the superior court concluded that the true up of the shortfall caused by the Catalyst bankruptcy was a consequence of that bankruptcy rather than a taking of MXenergy's property, and further concluded that the regulatory policy decision of the commission to override its staff recommendation and allocate some funds to MXenergy from the universal service fund was supported by the evidence, was within the discretion of the commission, and was not arbitrary or capricious. We agree, for the reasons stated below.

1. We first consider MXenergy's contention that the trial court applied an incorrect standard of review. As we noted in Infinite Energy, supra, in response to the same contention:

(Citations, punctuation, and footnotes omitted.) Infinite Energy, supra, 257 Ga.App. at 758(1), 572 S.E.2d 91. Here, as in Infinite Energy, we presume that the trial court knows the law and faithfully performs its duties, and we do not presume that the trial court erred in its application of the appropriate standard simply because its order does not contain the words "de novo review." Id. at 759(1), 572 S.E.2d 91.

The record contains no showing that the trial court applied an incorrect standard to any legal conclusions made by the commission. Infinite Energy, supra, 257 Ga.App. at 758(1), 572 S.E.2d 91 Both at the hearing and in its order, the trial court correctly framed the issue—whether the commission's decision violated the "takings clause" of the Georgia or United States Constitution—and explicitly considered it at length, ultimately rejecting MXenergy's contention that a constitutional violation occurred. "Because there is no evidence in the record affirmatively showing that the court applied the wrong standard of review, we will not presume error." (Citation and footnote omitted.) Id.

2. We next consider whether the application of the true up process to the shortfall caused by Catalyst's bankruptcy violated the takings clauses of the United States and Georgia Constitutions. We agree with the trial court that it did not.

As the superior court noted, the concept of taking private property for public use "has always been understood as referring only to a direct appropriation, and not to consequential injuries resulting from the exercise of lawful power. It has never been supposed to have any bearing upon or to inhibit laws that indirectly work harm and loss to individuals." (Citation and punctuation omitted.) Louisville & Nashville R. Co. v. Mottley, 219 U.S. 467, 484, 31 S.Ct. 265, 55 L.Ed. 297 (1911).

MXenergy argues that Louisville & Nashville does not apply here because it involved the cancellation of a private contract between two parties by subsequent statute, not the "forced appropriation of physical property by the government for its own purposes." But this description is inapposite. The commission did not forcibly appropriate MXenergy's property; MXenergy, as part of its voluntary participation in a regulatory scheme to which it had consented through its certification as a natural gas provider, nominated and delivered a specified amount of natural gas to the common system of Atlanta Gas Light. When another marketer later failed to fulfill its obligation to pay for the gas used by its customers, the regulatory scheme allocated the resulting costs among the remaining marketers in accordance with an established process. This is not a "forced appropriation," but exactly the consequential injury in the course of exercising lawful power contemplated by Louisville & Nashville, supra.

Such events as the Catalyst bankruptcy cannot be said to be unanticipated or unexpected. Marketers have from time to time entered and left the Georgia market. In 2001, another marketer filed for bankruptcy and failed to pay its true up charges. The Catalyst bankruptcy and its consequences were not unique and unanticipated, but rather a foreseeable occurrence for which the parties had designed and implemented a regulatory process. The true up process itself contemplates that marketers may leave the Georgia gas market; it is therefore foreseeable that a marketer would do so in a "short" position requiring an adjustment from the remaining marketers.

MXenergy contends that Armstrong v. United States, 364 U.S. 40, 48-49(III), 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960), demonstrates that the use of the true up process in this case amounted to an unconstitutional taking. But that decision is distinguishable on its facts. In Armstrong, the petitioners held state law materialmen's liens on boats being constructed for the United States Navy. When the prime contractor defaulted, the United States, pursuant to its contract, took title to the uncompleted boats and materials on hand and moved them out of state, thereby extinguishing the plaintiff's liens. Id. at 41, 80 S.Ct. 1563. The United States Supreme Court held that this constituted a taking of the value of the lien rights, "of which loss the Government was the direct, positive beneficiary," rather than a mere "consequential" destruction of property.4 Id. at 49(III), 80 S.Ct. 1563.

Here, in contrast, the commission took no direct action to take, appropriate, or extinguish any property right of MXenergy, and it obtained no property or benefit.5 Instead, a well-established and legally tested regulatory process allocated the obligations of the "short" marketer, Catalyst, with respect to its customers who had used gas that was delivered by other marketers. See Infinite Energy, supra, 257 Ga.App. at 757, 572 S.E.2d 91. The process distributes those obligations among all "long" marketers, thus assuring the provision of gas to all customers using the Atlanta Gas Light distribution system. As the Georgia Supreme Court noted with reference to OCGA § 46-4-150 et seq. in Southstar Energy Svcs. v. Ellison, 286 Ga. 709, 711(1), 691 S.E.2d 203 (2010), "protecting natural gas consumers ... is the most important factor to consider in any decisions to be made in accordance with this article." Id., citing OCGA § 46-4-151(a)(4). The ultimate beneficiaries of the regulatory scheme and the true up process are not the commission or the State of Georgia, but the customers.

In other words, after the true up process had operated as intended, and after the fact, MXenergy sought to obtain from the government amounts representing its commercial losses on gas delivered to Catalyst's customers. This is merely a "consequential" loss to MXenergy within the meaning of Armstrong, supra, and the "takings clause," whether state or federal, is inapplicable here. "This constitutional provision will apply only if property is taken or damaged. [Cits.]" Lindsey v. Guhl, 237 Ga. 567, 572(II), 229 S.E.2d 354 (1976) (applying former Ga. Const. of 1945, Art. I, Sec. III, Par. I).

3. The commission elected not to follow the recommendation of its staff to deny any payment to the affected marketers on their petition. Instead, it decided to allocate amounts from the universal service fund maintained by the commission

OCGA § 46-4-161(a). MXenergy contends that by providing these funds, the commission has conceded that the application of the true up process to the Catalyst bankruptcy was in fact a taking and that MXenergy is owed full compensation for the gas it contributed to the allocation. We disagree.

As noted above, "[t]he court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact." OCGA § 50-13-19(h). And waiver, like notice, Infinite Energy, supra, 257 Ga. App. at 759(1), 572 S.E.2d 91, is a question of fact. Everts v. Century Supply Corp., 264 Ga.App. 218, 220-221, 590 S.E.2d 199 (2003) (summary judgment inappropriate where factual question of waiver presented).

Evidence was presented that, in the context of its duty to protect natural gas consumers, OCGA § 46-4-151(a)(4), the commission intended to moderate the increase in costs resulting from Catalyst's inability to supply its customers, to encourage marketers to "be diligent" in addressing business risks, and to prevent the affected marketers from passing on to their customers all the costs of making up Catalyst's shortfall. From this, the superior court concluded that the decision to allocate a portion of the universal service fund to the Catalyst shortfall was "a regulatory business issue and a question of regulatory policy" that was supported by the evidence. Because some evidence supports that conclusion, MXenergy's argument in this regard is to no avail.

The superior court correctly affirmed the commission's decision to provide some discretionary compensation to MXenergy for its losses suffered as a result of the Catalyst bankruptcy, and did not err in concluding that the operation of the true up process did not amount to a constitutional "taking" under either the Georgia or United States Constitutions. We therefore affirm the judgment of the superior court.

Judgment affirmed.

MIKELL and DILLARD, JJ., concur.