Discussion
of Issues
Issue 1:
Should the Commission grant OPC's Motion for Partial
Summary Final Order?
Recommendation:
No. OPC’s Motion for Partial Summary Final Order
should be denied. (Dziechciarz, Weisenfeld, Lherisson)
Staff Analysis:
Standard of Review for Motion for Summary Final
Order
Section 120.57(1)(h), F.S., requires that, in order to
grant a motion for summary final order, it must be determined from “pleadings,
depositions, answers to interrogatories, and admissions on file, together with
affidavits, if any, that no genuine issue as to any material fact exists and
that the moving party is entitled as a matter of law to the entry of a final
order.” The Commission has previously stated that “the standard for granting a
summary final order is very high.”
In general, “a summary judgment should not be granted
unless the facts are so crystalized that nothing remains but questions of law,”
and “must show conclusively the absence of any genuine issue of material fact
and the court must draw every possible inference in favor of the party against
whom a summary judgment is sought.” Moore
v. Morris (Moore), 475 So. 2d 666, 668 (Fla. 1985); see also City of Clermont, Fla. v. Lake City Util.
Servs. , Inc., 760 So. 2d 1123, 1124 (Fla. 5th DCA 2000), and Wills v. Sears, Roebuck & Co., 351
So. 2d 29 (Fla. 1977). If the record “raises even the slightest doubt” that an
issue of material fact may exist, a summary final order would not be
appropriate. Albelo v. S. Bell (Albelo),
682 So. 2d 1126, 1129 (Fla. 4th DCA 1996).
Even if the parties agree as to the facts, “the remedy of summary
judgment is not available if different inferences can be reasonably drawn from
the uncontroverted facts.” Albelo, 682
So. 2d at 1129. The Commission has also previously found that “it is premature
to decide whether a genuine issue of material fact exists when [a party] has
not had the opportunity to complete discovery and file testimony.”
In addition, the Commission has acknowledged that the
purpose of summary final order is to avoid the expense and delay of trial when
no dispute exists concerning the material facts.
The record is reviewed in the light most favorable toward FPUC, against whom
the summary judgment is to be entered. OPC carries a heavy burden to present a
showing that there is no genuine issue as to any material fact. Subsequently,
the burden shifts to FPUC to demonstrate the falsity of the showing. If FPUC
does not do so, summary judgment is proper and should be affirmed. Even if the
facts are not disputed, a summary judgment is improper if different conclusions
or inferences can be drawn from the facts.
OPC’s Motion
OPC argues that FPUC’s request to recover normal operation
and maintenance (O&M) expenses not recovered (in the amount of $984,283,
inclusive of interest), and its request to establish a regulatory asset for
reduction in customer base for November and December 2018, and all of 2019 (in
the amount of $504,448, inclusive of interest), are both thinly veiled attempts
at collecting for lost revenue, which OPC further argues is prohibited in this
case by the doctrine of retroactive ratemaking and by Rule 25-6.0143(1)(f)(9),
Florida Administrative Code (F.A.C.).
OPC avers that even drawing every possible inference in
favor of FPUC, the facts and circumstances in this case are so crystalized that
nothing remains but questions of law. OPC argues that FPUC cannot produce
counter-evidence sufficient to show that a genuine issue exists, and that FPUC
cannot do so because the facts and law are indisputable. OPC argues that it is
indisputable that FPUC is seeking to create two regulatory assets based on lost
revenue for prior periods, and it is indisputable that the doctrine of
retroactive ratemaking under Florida law, applicable case law, and Commission
rules, prohibit the creation of these types of regulatory assets to charge future
customers for lost revenue and profits. OPC argues that its Motion provides
substantial and competent evidence to support its request for Partial Summary
Final Order, and thus its Motion should be granted as a matter of law.
A. Retroactive Ratemaking
OPC argues that Section 366.03, F.S., provides that all
rates and charges received by a public utility for any service rendered, or to
be rendered, shall be fair and reasonable. OPC continues that it is manifestly
unfair and unreasonable to charge customers for service that was not rendered
in the past. OPC concludes that the Commission should deny FPUC’s request for
establishing a regulatory asset for lost revenue because it is prohibited by
the doctrine of retroactive ratemaking, pursuant to Florida law and Rule
25-6.0143(1)(f)(9), F.A.C.
OPC argues that FPUC’s request to recover unrecovered (or
“lost”) O&M expenses in the prior period is an example of “pure and simple”
retroactive ratemaking. OPC argues that the unrecovered O&M expenses were
already expensed in a prior period, and FPUC’s request to allow it to collect
the lost revenue in current and future periods is a classic example of
retroactive ratemaking, which is prohibited by Chapter 366, F.S.
OPC notes that in Order No. PSC-98-1243-FOF-WS (UWF
Order), issued on September 21, 1998, the Commission acknowledged that
retroactive ratemaking occurs when an attempt is made to either recover past
losses (under earnings) through prospective rates, or to recoup prior period
overearnings through a refund. In
the UWF Order, the Commission further stated that past losses are interpreted
to be prior period costs that a utility did not recover through its rates,
including those which cause the utility to earn less than a fair rate of
return.
OPC further contends that FPUC’s differentiation between
“lost revenue” and “O&M costs not recovered,” does not justify allowing the
creation of the regulatory assets FPUC seeks. OPC asserts that the Commission
acknowledged this distinction in Order No. PSC-2019-0114-FOF-EI (FPUC Storm
Order), issued on March 26, 2019.
OPC also contends that FPUC’s claim that it should be held harmless because its
earnings position was at the low end of its authorized earnings range for the
prior period in question is contrary to the regulatory compact. OPC argues that
the regulatory compact provides only the opportunity to earn a fair rate of
return, and that it does not guarantee a certain level of profit. OPC concludes
that if the Commission were to approve FPUC’s request for lost earnings, it
would turn the regulatory compact on its head.
In addition, OPC contends that according to the Financial Accounting
Standards Board Accounting Standards Codification 606, a fundamental principle
of Generally Accepted Accounting Principles (GAAP) is the principle of revenue
recognition, which stipulates revenue is recognized when realized and earned,
not necessarily when received. OPC states that “realizable” means that goods
and/or services have been received, but payment for the product/service is
expected later. OPC argues that the service FPUC’s customers pay for is
electricity, which in this case was never received. OPC continues that FPUC is
making a specious argument that these regulatory assets are for unrecovered
past O&M expenses, rather than lost revenue and profits, and is trying to
cloud the clear prohibition against this type of retroactive ratemaking.
OPC further argues that in the UWF Order, the Commission
already found that a request to establish a regulatory asset to capture past
estimated revenue not billed is clearly prohibited. OPC argues that the utility
in that proceeding sought to create a regulatory asset to defer and amortize
unrecovered employee benefits costs that resulted from accounting changes. OPC
notes that the utility argued that it was appropriate to deviate from the
doctrine of retroactive ratemaking because of the extraordinary cost and
fairness and equity exceptions to the doctrine. Ultimately, the Commission
rejected application of these exceptions due to the clear prohibition against
retroactive ratemaking, and noted that the exceptions raised by the utility
were not based on Florida law. OPC contends that FPUC is seeking to create a
regulatory asset for prior period costs that were not recovered in its base
rates, and that its argument about the extraordinary circumstances resulting
from Hurricane Michael is essentially the same as the utility’s failed argument
in the UWF Order.
OPC further contends that there is no basis in Florida law
for such an exception to the doctrine of retroactive ratemaking, and that it
would be unfair and unjust to create such an exception. OPC avers that FPUC’s
customers suffered equally, if not in some cases more than, FPUC through no
fault of their own, and that it would be fundamentally unfair to allow FPUC to
create a regulatory asset to collect money from customers for service that they
did not receive, so that FPUC does not have to suffer any financial harm from
Hurricane Michael.
B. Rule 25-6.0143, F.A.C.
OPC argues that FPUC has acknowledged that Rule
25-6.0143(1)(f)(9), F.A.C., prohibits it from charging unrecovered expenses to
its storm reserve account, and that the Commission has determined that O&M
expenses not recovered due to reduced revenue resulting from an outage are
likewise not recoverable through a storm surcharge.
OPC argues that while FPUC concedes that the O&M expenses are normal
expenses, FPUC wants the Commission to ignore Rule 25-6.0143(1)(f)(9), F.A.C.,
which does not allow for recovery of normal base rate O&M expenses incurred
during the storm period through a storm surcharge.
OPC argues that FPUC cannot legitimately charge rates to
customers who received no service from the Company due to the effects of
Hurricane Michael, whether because the customers could not receive service, or
whether the customer did not re-establish service with FPUC. OPC further
asserts that it would not be fair to charge FPUC’s “other” customers for this
lost revenue that relates to previous customers who did not receive service
from the utility. OPC concludes that to allow FPUC to create a regulatory asset
to make up for “lost revenue,” based on no services being provided, leads to
unjust compensation, and thus any potential inclusion in the establishment of
new rates would also lead to unjust and unreasonable rates.
In addition, OPC contends that the customers of FPUC
suffered great losses as a result of Hurricane Michael, and that these
customers should not have to pay for electric service that they did not, and in
some instances, could not, receive. OPC further argues that the permanent loss
of 546 accounts in FPUC’s Northwest Division attests to the suffering of FPUC’s
customers in that territory, and that the remaining customers should not have
to pay for FPUC’s loss of profits from the reduction in its customer base. OPC
notes that electric utilities lose customers every day for a myriad of reasons,
such as when customers move outside of the utility’s service area, or install
their own renewable systems.
OPC argues that Rule 25-6.0143, F.A.C., establishes that
the Commission’s policy for the types of storm costs that are recoverable from
customers, and that the Incremental Cost and Capitalization Approach (ICCA)
methodology propounded in the Rule must be followed, irrespective of how a
utility chooses to recover storm-related costs from customers (surcharge or
regulatory asset). OPC further states that the Commission disallowed a similar
request from FPUC for lost revenue due to Hurricane Irma. In
that case, the Commission found that lost revenue from service not provided due
to a storm is prohibited from being charged to the reserve under the ICCA
methodology. OPC
argues that FPUC is merely renaming its previous request from a storm-reserve
charge to a regulatory asset, and that in either case FPUC is prohibited from
recovering lost revenue from its customers. OPC concludes that FPUC is prohibited
from such recovery under the doctrine of retroactive ratemaking, which is the
basis for the prohibition on charging lost revenue from service not provided
found in Rule 25-6.0143(1)(f)(9), F.A.C.
FPUC’s Response
FPUC argues that the Commission has consistently recognized
that the standard for granting a request for Summary Final Order is very high,
and that OPC has not met this standard with its Motion. FPUC argues that OPC
has failed to conclusively demonstrate that no issues of material fact exist,
nor has it demonstrated that it is entitled to judgment as a matter of law.
FPUC also argues that granting OPC’s Motion would be premature, and is unlikely
to avoid a hearing in this matter. Accordingly, FPUC requests that the
Commission deny the Motion.
A. Facts Remain in Dispute
1. Whether Unrecovered O&M Expenses Equate
to Lost Revenue
FPUC argues that OPC’s Motion reflects that there is at
least one key issue of fact that remains in dispute; namely, whether the
unrecovered O&M expenses for which FPUC seeks recovery are equivalent to
“lost revenue.” FPUC further argues that the Commission has acknowledged FPUC’s
differentiation between lost revenue and O&M costs not recovered in the FPUC
Storm Order. FPUC acknowledges that in that case, the Commission found that it
was not appropriate to charge these costs to its storm reserve account. FPUC
argues that since FPUC is not seeking to recover these costs through the storm
reserve in this proceeding, the appropriateness of FPUC’s request remains a live
issue in dispute.
FPUC also argues that OPC’s Motion fails to indicate that
FPUC did not recover the O&M expenses because it sought a waiver to
rendering monthly bills in its Northwestern Division in light of the
devastation caused by Hurricane Michael, which the Commission approved by Order
No. PSC-2018-0529-PAA-EI, issued on November 8, 2018. FPUC states that it did
not reinstate billing in the Northwest Division until early December 2018, but that
service was restored to 97 percent of the Northwest Division’s customers by
November 1, 2018. FPUC argues that to allow OPC to recast the unrecovered
O&M expenses as simply lost revenue, and its assertion that such expenses
should remain unrecovered, would unfairly penalize FPUC for taking the humane
action of not billing its customers for a period following a cataclysmic event.
FPUC also notes that because the Northeast Division
continued to function and incur normal O&M expense throughout the period,
only this half of FPUC’s customer base was billed the rates designed to recover
normal O&M expense across two divisions, despite normal O&M expenses
continuing to be incurred in the Northeast Division for the entire period, and
in the Northwest Division for a portion of the period.
2. Whether Electric Service Was Received
FPUC further contends that an additional fact remains in
dispute – whether or not some customers received electricity for which they
were not eventually billed. FPUC disagrees with OPC’s assertion that FPUC’s
request for recovery amounts to seeking payment from customers for electric
service that was never received. FPUC argues that it has not been established
that none of FPUC’s customers received service during October through November
2018. FPUC notes that to the contrary, by November 1, 2018, FPUC restored its
system to the extent that 97 percent of its customers could receive electric
service on their premises. FPUC contends that it can be expected that a lower
percentage of restored service was available prior to November 1, yet FPUC did
not reinstate billing in the Northwest Division until December 2018.
FPUC argues that OPC narrowly construes service as the flow
of electricity into a customer’s house; however, much more is involved in
providing service to customers. FPUC argues that rates are designed to cover
not the electrons themselves, but the construction, wires, and maintenance
necessary to get the “product” (ex. the ability to turn on a light) to the
customer’s premise. As of November 1, 2018, FPUC had provided this aspect of its
service to 97 percent of its customers’ premises, and after this period, the
customers that could not receive the product was due to their premises being
unable to receive electricity. FPUC notes that it is not arguing that it should
be allowed to bill for electricity that the customer never received, but
disputes OPC’s contention that FPUC is seeking recovery for revenue that was
not earned.
B. OPC Misinterprets the Law
1. Relief FPUC Requests is Not Prohibited
FPUC argues that its request for unrecovered O&M
expenses, as well as the loss associated with its reduction in customers, does
not equate to retroactive ratemaking as OPC contends, and that OPC disregards
Commission precedent under which similar relief was provided to another Florida
utility. FPUC notes that OPC is correct in stating that the Commission has
determined that retroactive ratemaking occurs when an attempt is made to
recover either past losses or over earnings in prospective rates, as iterated
in the UWF Order. However, FPUC argues that in the UWF Order, the Commission
stated that it does “not believe that the Court decisions literally mean that
retroactive ratemaking would occur from reaching back to past consumption and
back-billing for over or under collections during those periods.”
In the UWF Order, the Commission also acknowledged the
Florida Supreme Court’s statements on retroactive ratemaking in its decision, GTE Florida Inc. v. Clark (GTE), in which
the Court stated that it views “ratemaking as a matter of fairness” and that
“[e]quity requires that both ratepayers and utilities be treated in a similar
manner.” The
Court in GTE allowed the utility to
implement a surcharge for prior expenses that had erroneously been disallowed, and
distinguished the utility’s request from being characterized as a new rate
being applied retroactively, which is prohibited. FPUC argues that its request
for unrecovered O&M expenses and lost customer revenue is precisely what
the utility in GTE was granted.
FPUC incurred normal O&M expenses both prior to and
after the storm that were never recovered because FPUC determined it would not
be equitable to bill its customers in the Northwest Division immediately in the
aftermath of Hurricane Michael. FPUC argues that considering the damage,
billing its customers would be like pouring salt in a wound.
FPUC further argues that the UWF Order is distinguishable
from the case at hand. In the UWF Order, the Commission addressed a situation
where a change in accounting treatment resulted in a loss to the utility. In
rejecting the utility’s request for recovery, the Commission noted the
substantial amount of time that had passed between the effective date of the
accounting change and the utility’s filing for a rate case. The Commission
further noted that the utility could have secured recovery of a substantial portion
of the costs if it had filed for a rate case or limited proceeding sooner.
FPUC argues that it took action in a timely manner to
address its losses, unlike the utility in the UWF Order. FPUC notes that in
this case, no one could have predicted the level of devastation that resulted
from Hurricane Michael, and that in the early days following Hurricane Michael
search and rescue, followed by service restoration, took precedence over
regulatory ratemaking and revenue issues. In addition, FPUC notified the
Commission on October 24, 2019, that its losses would exceed $10 million
pursuant to Rule 25-6.0143, F.A.C. FPUC also undertook actions to mitigate the
impact of the storm on its customers, including several discussions with OPC
and Commission staff. FPUC submitted its petition in this proceeding just short
of ten months following the storm, on August 7, 2019.
FPUC also argues that the Commission has allowed recovery
of these types of expenses under very similar circumstances in a prior case,
and thus if recovery was not prohibited as retroactive ratemaking then, it is
not prohibited as retroactive ratemaking now. In Order No. PSC-05-0937-FOF-El,
issued on September 21, 2005, the Commission found that normal O&M expenses
not recovered in base rates were eligible for recovery in Florida Power &
Light Company’s storm recovery mechanism.
With respect to FPUC’s loss in customer base, FPUC does
not deny that the amount associated with this regulatory asset does equate to
lost revenue. However, FPUC argues that OPC fails to recognize that the revenue
FPUC is receiving from its remaining customers no longer covers the cost of
running the system with any opportunity to achieve a fair return. FPUC contends
that its request to establish and recover the amortization on a regulatory
asset to address this loss of revenue is not retroactive ratemaking. Rather, it
is a reallocation of the Company's approved revenue requirement over a reduced
customer base. FPUC argues that this adjustment is not uncommon in the context
of a rate case; however, FPUC has requested it in the context of a limited
proceeding.
FPUC argues that Commission-established rates and earnings
ranges provide an opportunity for a utility to earn a fair return, but that the
ratemaking process does not and could not address the significant issues at
play following Hurricane Michael. FPUC argues that while the regulatory compact
provides only an opportunity for a utility to earn a fair return, and does not
guarantee a certain level of profit, as OPC suggests, Hurricane Michael
demolished that opportunity for FPUC. FPUC concludes that if anything,
Hurricane Michael has turned the regulatory compact on its head.
2. Arguments under Rule 25-6.0143(1)(f)(9),
F.A.C. are Misplaced
FPUC argues that it does not deny that Rule
25-6.0143(1)(f)(9), F.A.C., prohibits FPUC from charging the expenses
associated with FPUC’s proposed regulatory assets to the storm reserve.
However, FPUC does not agree with OPC’s extrapolation that because the
Commission’s Rule prohibits charging these costs to the storm reserve, that the
Commission clearly intended that these costs not be recoverable at all. FPUC
notes that it cannot find one instance in which the Commission expressly stated
that that costs represented by FPUC’s proposed regulatory assets are not
recoverable at all by any other mechanism.
FPUC further contends that it did not seek relief under
Rule 25-6.0143, F.AC., given the scope of the relief that FPUC required.
Rather, FPUC argues that it chose to request to establish a series of
regulatory assets because the storm surcharge recovery mechanism would not
accommodate the recovery FPUC required without unjustly burdening FPUC’s
customers with an “outrageous” storm surcharge. FPUC argues that the Commission
should be wary of OPC’s rush to limit its consideration of the merits of FPUC’s
request based upon a Rule that does not apply to its request.
3. Granting Motion Will Not Avoid Delay and Cost
of Hearing
FPUC notes that the Commission has recognized that one of
the key reasons for issuing a summary final order is to avoid the expense and
delay of trial. FPUC argues that granting OPC’s Motion will
not do that, accordingly, its Motion should be denied.
Analysis
Staff recommends that this dispute clearly presents a
number of mixed questions of fact and law, and that OPC has not met its high
burden to present a showing that there is no genuine issue as to any material
fact. In the case at hand, the testimony and admissions surrounding FPUC's
expenses could permit different reasonable inferences. Here, FPUC submits that
the evidence supports a characterization of “unrecovered O&M expenses,”
while OPC submits that the evidence supports characterizing those expenses as
“lost revenue.” These conflicting interpretations convey that a genuine issue
of material fact exists. Like in Moore,
there is nothing about these facts that leads conclusively and inescapably to
only one conclusion.
Therefore, since OPC’s Motion must be viewed in the light most favorable to
FPUC, staff recommends that OPC’s Motion be denied.
In addition, staff recommends that FPUC has demonstrated
that another issue of fact regarding its request to recover O&M expense
remains in dispute, that is, whether or not electric service was actually
received. OPC argues that FPUC is attempting to recover O&M expenses for
electric service that was not earned in a prior period, which is contrary to
the doctrine of retroactive ratemaking. FPUC argues that the extent to which
electric service was received by the majority of its customers, and thus
earned, in a prior period, has not been established, and thus remains in
dispute. As indicated above, if the record raises even the slightest doubt that
an issue of material fact may exist, then granting of summary judgment is not
appropriate, and thus OPC’s Motion should be denied.
Moreover, staff concurs with FPUC that this Commission has
recognized that policy considerations should be taken into account in ruling on
a motion for summary final order.
Because the Commission has a duty to regulate in the public interest, the
rights of not only the parties must be considered but also the potential impact
to others, and the decision cannot be made in a vacuum. Policy
considerations must be taken into account in granting a summary judgment.
Most notably, the Commission has recognized that:
[t]he granting of a summary judgment, in most
instances, brings a sudden and drastic conclusion to a lawsuit, thus
foreclosing the litigant from the benefit of and right to a trial on the merits
of his or her claim. . . . It is for
this very reason that caution must be exercised in the granting of summary
judgment, and the procedural strictures inherent in the Florida Rules of Civil
Procedure governing summary judgment must be observed. . . . The procedural
strictures are designed to protect the constitutional right of the litigant to
a trial on the merits of his or her claim.
They are not merely procedural niceties nor technicalities.
Staff recommends that the primary question of fact at issue
here (whether unrecovered O&M expenses equate to lost revenue), is directly
related to the questions of law and policy that OPC and FPUC lay out
extensively in their filings; namely, whether prior Commission decisions (in
2004 and in the FPUC Storm Order), the doctrine of retroactive ratemaking, or
Rule 25-6.0143, F.A.C., preclude FPUC from seeking recovery of these expenses.
Staff also recommends that whether FPUC can recover the lost revenue from its
reduction in customer base as a result of Hurricane Michael by establishing a
regulatory asset in a limited proceeding, as opposed to addressing this issue
in a rate case, is a policy consideration that is not appropriate to dismiss in
a partial summary final order.
Furthermore, the extent to which, if at all, FPUC can
recover the O&M expenses and lost revenue from reduction in its customer
base, in the manner in which FPUC has requested (to establish regulatory
assets), appears to be a question of first impression before
the Commission, and staff believes it is therefore inappropriate to be dealt
with by partial summary final order. Staff recommends that it is not
appropriate at this time to make a determination on the legal or factual issues
to be addressed at a future evidentiary hearing. Rather, staff recommends only
that the high standard for granting a summary final order has not been met.
In addition, staff does not believe that granting OPC’s
Motion would avoid the expense and delay of a trial, which the Commission has
acknowledged as the purpose of a summary final order. Staff believes that even
if OPC’s Motion were granted, similar questions of fact, law, and policy are expected
to be addressed at the hearing to determine the remainder of FPUC’s requests to
recover storm costs, which is currently set for September 8-10, 2020. Staff
recommends that it is more appropriate to address such nuanced issues of fact,
law, and policy before the Commission in the context of FPUC’s full request
related to Hurricane Michael, especially given the storm’s level of impact on
both FPUC and its customer base.
Staff also notes that OPC states that its Motion was filed
pursuant to Rule 28-106.204, F.A.C.
Subsection (3) of that Rule requires that “[m]otions, other than a
motion to dismiss, shall include a statement that the movant has conferred with
all other parties of record and shall state as to each party whether the party
has any objection to the motion.” OPC
included no such statement in its Motion, and should have informed the Commission
in its Motion whether any parties objected, after conferring with them, or it
should have provided a statement that it attempted but was unable to confer
with the parties.
Conclusion
For the reasons stated above, staff does not believe that
the facts of this case are “so crystalized” that it is clear that no genuine
issue as to any material fact exists. Whether normal unrecovered O&M
expenses are equal to lost revenue, whether FPUC is seeking to charge its
customers for service not rendered, whether FPUC can create a regulatory asset
for its lost revenue as a result of its reduction in customers, and whether the
expenses are permissible for FPUC to recover, are genuine issues of fact, law,
and policy that are inextricably linked in this case. Furthermore, staff
believes that granting OPC’s Motion would not avoid the expense and delay of a
hearing, and additional facts may be developed at hearing that would help the
Commission decide these matters. Accordingly, staff recommends that it is not
appropriate at this time to make a determination on the legal or factual issues
to be addressed at a future evidentiary hearing.
Staff recommends that OPC has not conclusively
demonstrated, at this point, that no issues of genuine fact remain with the
issues presented, and that the high standard for granting a summary final order
has not been met. Staff also recommends that OPC has not met its high burden of
showing that partial summary judgment is appropriate given the policy
considerations that would be implicated by such a decision. Therefore, staff
recommends that the granting of a partial summary final order is premature at
this time, and that OPC’s Motion should be denied.
Issue 2:
Should these dockets be closed?
Recommendation:
No. These dockets should remain open for an
evidentiary hearing on these matters. (Dziechciarz, Weisenfeld, Lherisson)
Staff Analysis:
These dockets should remain open for an evidentiary
hearing on these matters.
