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State of Florida
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For an official paper copy, contact the Florida Public Service Commission at
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State of Florida
Public Service Commission
Capital Circle
Office Center 2540 Shumard Oak Boulevard
Tallahassee,
Florida 32399-0850
-M-E-M-O-R-A-N-D-U-M-
DATE:
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November
8, 2006
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TO:
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Director, Division of the Commission Clerk &
Administrative Services (Bayó)
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FROM:
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Office of the General Counsel (Brubaker,
Fleming)
Division of Economic
Regulation (Harlow, Brown, Bulecza-Banks,
Hewitt, Matlock, McRoy, Springer, VonFossen)
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RE:
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Docket No. 060635-EU – Petition for
determination of need for electrical power plant in Taylor County by Florida Municipal
Power Agency, JEA, Reedy Creek Improvement District, and City of Tallahassee.
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AGENDA:
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11/21/06
– Regular Agenda – Decision on Motion for
Reconsideration of Non-Final Order – Oral Argument Not Requested; Participation
at discretion of the Commission
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COMMISSIONERS
ASSIGNED:
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All Commissioners
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PREHEARING
OFFICER:
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Tew
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CRITICAL DATES:
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None
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SPECIAL
INSTRUCTIONS:
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None
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FILE
NAME AND LOCATION:
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S:\PSC\GCL\WP\060635.RCM.DOC
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Case Background
On September 19, 2006,
the Florida Municipal Power Agency, JEA, Reedy Creek Improvement District, and
City of Tallahassee (Tallahassee) (collectively, Applicants) filed a petition for a determination of need for a proposed electrical power plant
in Taylor County pursuant to Section 403.519, Florida Statutes, and Rule
25-22.080, Florida Administrative Code (F.A.C.). By Order No. PSC-06-0819-PCO-EU, issued October 4, 2006, controlling
dates were established for this docket and the matter was scheduled for a
formal administrative hearing on January 10, 2007. On October 20, 2006, the Sierra Club, Inc. (Sierra
Club), John Hedrick, Barry Parsons, and Brian Lupiani petitioned to intervene
in this matter. By
Order No. PSC-06-0898-PCO-EU,
issued October
26, 2006, intervention was granted to the Sierra Club, Mr. Hedrick,
and Mr. Lupiani (collectively, Movants), but denied without prejudice to Mr.
Parsons. Simultaneous to their request
for intervention, the Movants filed a Motion to Extend Discovery Schedule and
Filing Date for Testimony and Exhibits.
On October
23, 2006, the Applicants filed a Response in Opposition to the
Motion. By Order No.
PSC-06-0903-PCO-EU, issued October 27, 2006,
the Prehearing Officer granted an extension until November 2, 2006, for filing all
intervenor testimony and exhibits.
On October 31, 2006,
the Sierra Club, Inc. (Sierra Club), John Hedrick, and Brian Lupiani timely
filed a motion for reconsideration of Order No. PSC-06-0903-PCO-EU. On November 2, 2006, Dianne V. Whitfield, Carole
E. Taitt, and John Carl Whitton filed a response in support and joinder to the
Movants’ Motion for Reconsideration. On November 3, 2006,
Rebecca Armstrong and Anthony Viegbesie also filed a response in support and
joinder. Oral
argument was not requested, but may be heard at the Commission’s discretion. This recommendation addresses the request for
reconsideration. The Commission has
jurisdiction pursuant to Section 403.519, Florida Statutes.
Discussion
of Issues
Issue 1:
Should the Commission grant the Movant's motion for
reconsideration?
Recommendation:
No. The motion for
reconsideration fails to identify any point of fact or law that the Prehearing
Officer overlooked or failed to consider in rendering the Order. (Fleming, Brubaker)
Staff Analysis:
Standard of Review
The standard of review for
reconsideration of a Commission order is whether the motion identifies a point
of fact or law that the Prehearing Officer overlooked or failed to consider in
rendering the order. See Stewart
Bonded Warehouse, Inc. v. Bevis, 294 So. 2d 315 (Fla. 1974); Diamond
Cab Co. v. King, 146 So. 2d 889 (Fla. 1962); and Pingree v. Quaintance,
394 So. 2d 162 (Fla. 1st DCA 1981). In a motion for reconsideration, it is not
appropriate to reargue matters that have already been considered. Sherwood v. State, 111 So. 2d 96 (Fla.
3rd DCA 1959); citing State ex.rel. Jaytex Realty Co. v. Green, 105 So. 2d 817 (Fla. 1st DCA 1958). Furthermore, a motion for reconsideration
should not be granted “based upon an arbitrary feeling that a mistake may have
been made, but should be based upon specific factual matters set forth in the
record and susceptible to review.” Stewart Bonded Warehouse, Inc. vs. Bevis.
Movants’ Motion
In
its motion, the Movants request that the Commission grant the intervenors an additional
60 days to file their testimony. The Movants
state that the order granting them an extension of time to file their testimony
until November 2,
2006, does not provide sufficient time to present an independent
review and analysis of the Applicants’ filing.
The Movants contend that the November 2nd extension is
insufficient given the complex issues in this case, and request that they be
given an additional 60 days to file their testimony. In the alternative, the Movants propose that
a revised procedural schedule be established incorporating the following: (1)
Intervenors will file basic testimony as presently provided; (2) the Applicants
will serve the intervenors copies of existing discovery responses on the same
date that the responses are served to the PSC
staff; (3) Intervenors will serve the Applicants with the first discovery
requests no later than five days after filing testimony; (4) Applicants will
serve discovery responses to intervenor discovery as soon as possible, but no
later than thirty days after receipt; (5) Intervenors will be allowed to file
supplemental testimony no later than ten days after receipts of discovery
responses; and (6) Applicants will be allowed to file rebuttal testimony to
supplemental testimony no later than ten days after receipt of supplemental
testimony.
As
referenced in the case background, two responses and joinders in support of the
motion were filed. The arguments raised
in the Intervenor responses are substantially similar to those raised by the
Movants.
Applicants’ Response
The
Applicants argue that the motion for reconsideration should be denied because
the motion does not identify any point of fact or law that the Prehearing
Officer overlooked or failed to consider in rendering Order No. PSC-06-0903-PCO-EU,
which already granted the intervenors additional time to file their testimony. In addition, the Applicants state that the Movants’
motion provides no basis to conclude that the Prehearing Officer’s order
constitutes an abuse of discretion.
Furthermore, the Movants do not provide any evidentiary support for the
request that they be granted additional time for filing testimony. The Applicants contend that the Movants have
had since September
19, 2006, a full six weeks, to review and analyze the application
and testimony and that the Movants’ own failure to timely exercise their rights
cannot create a basis for an extension of time.
Finally, the Applicants contend that the motion simply reargues matters
already considered, which is inappropriate in a motion for reconsideration.
Analysis and Conclusion
The Movants’ request for
reconsideration fails to identify any point of fact or law that the Prehearing
Officer overlooked or failed to consider in rendering the Order. Order No. PSC-06-0903-PCO-EU, issued on October 26, 2006, granted
the Movants additional time to file their testimony. The Movants are simply rearguing matters that
were already considered when the Prehearing Officer issued the order granting
the extension.
The Movants argue that due process
requires that the Commission grant the intervenors additional time to file
testimony to allow them a reasonable opportunity to become informed about the
utility filings and to complete their own technical analyses, testimony, and
exhibits. However, the Movants’ motion
provides no basis to conclude that the Prehearing Officer’s Order constitutes
an abuse of discretion. The Prehearing
Officer has broad authority to prevent delay.
Specifically, Rule 28-106.211, Florida Administrative Code, provides:
The presiding
officer before whom a case is pending may issue and orders necessary to
effectuate discovery, to prevent delay, and to promote the just, speedy, and
inexpensive determination of all aspects of the case . . .
The application was filed on September 19, 2006;
thus, the Movants have had six weeks to review and analyze the
application and testimony. In addition,
as of this date, the Movants have not availed themselves of the opportunity to
conduct discovery.
In the alternative, the Movants have requested that a
revised procedural schedule be established.
This is not appropriate in a motion for reconsideration. Under the schedule proposed, intervenors
would file their testimony, as currently provided in the Order (November 2),
then serve discovery requests within 5 days (November 7) to which the
Applicants would have 30 days to respond (December 7). Intervenors would then file supplemental
testimony within 10 days (December 18).
Then, Applicants would prepare rebuttal testimony for filing by December
28. Staff believes that the intervenors’
proposed schedule is unrealistic because, pursuant to the Order Establishing
Procedure, Order No. PSC-06-0819-PCO-EU,
Prehearing Statements shall be filed on December 8, 2006 and the Prehearing Conference
is currently scheduled for December 21, 2006. The
time frames established in Order Establishing Procedure are both reasonably
consistent with those exercised in prior need determination proceedings,
and are designed to comport with the requirements of Rule 25-22.080, Florida
Administrative Code.
Rule 25-22.080, Florida Administrative Code (“Electrical
Power Plant Permitting Proceedings”), provides that the Commission shall set a date for a
hearing which shall be within 90 days of receipt of the petition for a need
determination, and the matter will be placed before the Commission on an agenda
which will permit a decision no later than 135 days from the date of receiving
the petition. The Applicants waived the
90-day limit from December
18, 2006, to January 10, 2007, so that a hearing date could be
scheduled on the Commission calendar permitting participation at hearing by the
full Commission. The Applicants also
waived the 135-day limit from February 1, 2007, to February 13, 2007, to permit
additional time for post-hearing briefs by the parties and post-hearing
recommendation by staff.
In conclusion, the Movants are simply rearguing matters that
have already been considered when they were granted the extension to file their
testimony until November 2,
2006. Staff recommends that
the motion for reconsideration be denied because the motion fails to identify
any point of fact or law that the Prehearing Officer overlooked or failed to
consider in rendering the Order.
Issue 2:
Should this docket be closed?
Recommendation:
No. This
docket should remain open pending the Commission’s final decision in this
docket. (Brubaker, Fleming)
Staff Analysis:
This docket should remain open pending the
Commission’s final decision in this docket.