Case Background
Pursuant to Rule 25-17.015(1), Florida
Administrative Code (F.A.C.), the Florida Public Service Commission
(Commission) sets an annual evidentiary hearing in its continuing Energy
Conservation Cost Recovery (ECCR) docket pursuant to Sections 366.80-366.83,
Florida Statutes (F.S.), to approve conservation cost recovery. The evidentiary
hearing is set for November 2 – 4, 2016.
On August 19, 2016, Florida Power &
Light Company (FPL), Duke Energy Florida, LLC, (DEF), Tampa Electric Company
(TECO), and Gulf Power Company (Gulf) filed a Joint Petition for a Waiver of
Rule 25-17.015(1)(b), F.A.C., (Joint Petition). On the same day, Florida Public
Utilities Company (FPUC) filed a Notice of Joinder of the Joint Petition.
Notice of Joint
Petition was published in the Florida Administrative Register on August 24,
2016. No comments were received, and the time for filing comments expired on
September 7, 2016. The Commission has jurisdiction
pursuant to Sections 366.04, 366.05, and 366.06, F.S., as well as Section
120.542, F.S.
Discussion
of Issues
Issue 1:
Should the Commission grant Florida Power &
Light Company, Duke Energy Florida LLC, Tampa Electric Company, Gulf Power
Company, and Florida Public Utilities Company’s petition for waiver of Rule
25-17.015(1)(b), Florida Administrative Code?
Recommendation:
Yes. Staff recommends that the Commission find it
appropriate to grant the Joint Petition for waiver of Rule 25-17.015(1)(b), F.A.C.,
requested by Florida Power & Light Company, Duke Energy Florida LLC, Tampa
Electric Company, Gulf Power Company, and Florida Public Utilities Company, and
allow annual estimated/actual true-up filing of six month actual and six months
of projected data. (Tan, Cuello, Lingo)
Staff Analysis:
Petition
As stated, FPL, DEF, TECO, Gulf, and FPUC, all of the
investor owned utilities (IOUs) in Florida, request a rule waiver of the
requirements of Rule 25-17.015(1)(b), F.A.C. The rule requires the electric
utilities to make actual and estimated filings, based upon eight months of
actual data and four months of projected common costs, individual program costs,
and any colleced revenues. The IOUs state that the due date for the
actual/estimates true-up filing of August 19, 2016, does not allow the
companies to prepare the actual/estimated filing based on eight months of
actual and four months of projected data.
The IOUs indicated that they can prepare their filings on the basis of
six months actual and six months projected data. The IOUs request a waiver of Rule
25-17.015(1)(b), F.A.C., to allow their
filing to be based on six months of actual and six months of projected data.
The IOUs assert that filings based on six months of actual
and six months of projected data are a reasonable means of achieving the
purpose of the statutes implemented by Rule 25-17.015(1)(b), F.A.C. The IOUs contend
that the impossibility of submitting their filings on eight months of actual
data and four months of projected data basis by the due date established in the
Order Establishing Procedure, Order No. PSC-16-0102-PCO-EG, issued March 11,
2016, creates a substantial hardship for each of them. The IOUs further request that the waiver be
granted for a period of two years to cover the August 2016 filing and the 2017
filing.
The Facts
Rule 25-17.015,
F.A.C., requires the Commission to conduct annual ECCR proceedings in November
of each year. The IOUs who participate in annual energy conservation programs
over which the Commission has ratemaking authority may seek to recover their
costs for energy conservation programs, and they must demonstrate that their
expenditures to implement energy conservation programs are reasonable and
prudent. Rule 25-17.015(1)(b), F.A.C., requires that the electric utilities
make actual and estimated filings, based upon eight months of actual data and
four months of projected data to be used in the annual ECCR proceedings.
Requirements of Section
120.542, F.S.
Section
120.542(2), F.S., authorizes the Commission to grant variances or waivers from
agency rules where the person subject to the rule has demonstrated that the
purpose of the underlying statute will be or has been achieved by other means,
and strict application of the rule would cause the person substantial hardship.
As defined by Section 120.542(2), F.S., “substantial hardship” as defined in
the statute means demonstrated economic, technological, legal, or other
hardship.
Purpose of the Underlying
Statutes
Sections 366.80-366.83,
F.S., are known collectively as the Florida Energy Efficiency and Conservation
Act (FEECA). The purpose of these statutes
is to direct the Commission to adopt goals and approve plans related to the
promotion of demand-side renewable energy systems and the conservation of
electric energy. The IOUs are asking to
waive the eight months actual and four month projected aspect of the rule and
provide actual and estimated true-up filings that are six months actual and six
months projections of common costs, individual program costs and any revenues
collected. In their ECCR filings, the IOUs continue to provide actual and
estimated true-up projections. The IOUs assert that a waiver of Rule
25-17.015(1)(b), F.A.C., as proposed in the instant docket, will not prevent
meeting the statutory requirements under Sections 366.80-366.83, F.S., because
the six month actual and six month projections of information will satisfy the
purpose of Section 366.05(1), F.S., for this year.
Substantial Hardship
As stated, pursuant
to Section 120.542(2), F.S., the petition must demonstrate that application of
the rule would create a substantial hardship. Further, Section 120.542(2),
F.S., defines substantial hardship as demonstrated, economic, technological,
legal, or other type of hardship to the entity requesting the waiver. Here the IOUs
assert that application of the rule would create a substantial hardship to the
IOUs due to the impossibility of submitting their filing on the basis of eight
months of actual data and four months of projected data as required by the rule
and by the due date set by the Order Establishing Procedure. Staff recommends that the Commission finds
that the strict application of Rule 25-17.015, F.A.C., in the instant docket
would create a substantial hardship for the IOUs based on the unavailability of
the financial information. Staff believes that the information that the IOUs
provided will allow the Commission to determine the IOUs’ recovery of costs for
energy conservation programs pursuant to the annual ECCR program and that the
information complies with the underlying statutes. Therefore, staff recommends
that the IOUs have demonstrated that application of the rule would create a
substantial hardship under the current timeline as set forth in the current
hearing schedule.
Conclusion
Section
120.542, F.S., requires companies to demonstrate that the purpose of the
underlying statute will be or has been achieved by other means by the companies
and that application of the rule would create a substantial hardship. Staff
recommends that the IOUs have demonstrated that a substantial hardship would be created
with a application of Rule 25-17.015, F.A.C. Staff further recommends, that the
Commission find that the IOUs have demonstrated that the purpose of the
underlying statute will be achieved with a waiver of the application of Rule
25-17.015, F.A.C. Therefore, staff recommends that the Commission find it
appropriate to grant the IOUs’ Joint Petition for waiver of Rule
25-17.015(1)(b), F.A.C., and allow annual estimated/actual true-up filings of
six month actual and six months of projected data.
Issue 2:
Should this docket be closed?
Recommendation:
No. If no person whose
substantial interests are affected by the proposed agency action files a
protest within 21 days of the issuance of the order, this docket should not be
closed upon the issuance of a consummating order. The Energy Conservation Cost
Recovery Clause docket is ongoing and this docket should remain open for
further Commission action. (Tan, Cuello)
Staff Analysis:
If no person whose substantial interests are
affected by the proposed agency action files a protest within 21 days of the
issuance of the order, this docket should not be closed upon the issuance of a
consummating order. The Energy Conservation Cost Recovery Clause docket is
ongoing and this docket should remain open for further Commission action.
