Case Background
On October 13,
2020, Environmental Utilities, LLC. (EU or Utility) filed
its application for an original wastewater
certificate in Charlotte County.
With its application, EU filed a petition for temporary waiver of portions of
Rule 25-30.033, Florida Administrative Code (F.A.C.), so that the Utility's
initial rates and charges might be set at a date subsequent to the granting of
the certificate of authorization. This petition for temporary rule waiver was
denied by Order No. PSC-2021-0066-PAA-SU, issued February 2, 2021.
Pursuant to Rule 25-30.030, F.A.C., EU both
published notice in the proposed service area, and provided notice by mail to
property owners in the service area EU proposes to serve. Timely objections to
EU’s application have been filed with the Commission; therefore, this matter
will be set for an administrative hearing. One of the objectors who has
requested a hearing is Ms. Linda Cotherman, a resident in the area EU proposes
to provide wastewater service.
As part of
the information required to support its certificate application, EU filed
certain financial information, together with a request for confidential
classification of that information, on October 14, 2020. Pursuant to Section
367.156(1), Florida Statutes (F.S.), confidential treatment of the information
was granted by Order No. PSC-2021-0087-CFO-SU (Order), issued February 19,
2021, for a period of 18 months from the date of the Order. On March 1,
2021, Ms. Cotherman timely filed a Motion for Reconsideration (Motion) of the Order.
EU responded to Ms. Cotherman’s Motion on March 8, 2021, and Ms. Cotherman
filed an Amended Motion for Reconsideration on March 12, 2021.
Ms. Cotherman did not request oral argument
regarding her Motion for Reconsideration, as amended. Pursuant to Rule
25-22.0022, F.A.C., the Commission may hear argument from the parties at its
discretion.
The Commission
has jurisdiction pursuant to Sections 367.031, 367.045, 367.081, and 367.156, F.S.
Discussion
of Issues
Issue 1:
Should the Commission grant Ms. Cotherman’s Motion
for Reconsideration, as amended, of Order No. PSC-2021-0087-CFO-SU?
Recommendation:
No. The Motion
for Reconsideration, as amended, should be denied because Ms. Cotherman has
failed to identify a point of fact or law that was overlooked or that the Prehearing
Officer failed to consider in rendering the Order. (Osborn, Crawford)
Staff Analysis:
Standard of Review
The appropriate standard of review in a motion for
reconsideration is whether the motion identifies a point of fact or law that
was overlooked or that the Commission failed to consider in rendering its Final
Order. 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 161 (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. 3d 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, 294 So. 2d at 317.
Motion for Reconsideration
In her March 1,
2021 Motion for Reconsideration, Ms. Cotherman argues that there are disputed
factual issues about EU’s financial ability to provide service to the proposed
service area. She claims that EU has not demonstrated sufficient financial
resources to handle the business of a public utility and states the Utility has
not provided any information as to the cost to residents of installation or
service. Ms. Cotherman also claims that, “Depriving the public of the knowledge
about the financial health/wherewithal of Environmental Utilities, LLC, places
the parties of record at a disadvantage of being able to gauge one of the central
requirements for the proposed utility’s ability to satisfy the elements
necessary to obtain a certificate.” Ms. Cotherman argues that these claims show
good cause for the Commission to reconsider its Order and publish the financial
information the Order protects.
Ms. Cotherman
subsequently filed an Amended Motion for Reconsideration on March 12, 2021, in
which she again asserts that there are disputed factual issues about EU’s
financial ability to provide service to the proposed service area and the lack
of any information of the cost to residents of installation or service. Ms.
Cotherman adds that she was a party in a similar case with some of the same
parties (Docket No. 20020745-SU) and prevailed in her arguments to the
Commission. She also maintains that just because EU has reached a
Confidentiality Agreement with another party does not mean she would have
access to the confidential documents because of her relationship with that
party.
Utility’s Response to Motion for
Reconsideration
In its March 8, 2021 response, EU argues that
Ms. Cotherman has no legitimate need for the confidential financial
information. The response also claims that Ms. Cotherman is a member of the
Board of Directors of the Palm Island Estates Association, Inc. (Palm Island).
Palm Island is the homeowners association for the Palm Island Estates
community, whose individual residents reside in the area where EU
proposes to provide wastewater service. Palm Island timely objected to EU’s
application and requested an administrative hearing. EU entered into a Confidentiality Agreement with Palm Island’s attorney,
Brad Kelsky, and provided him with the confidential financial information. EU
also provided the confidential information to the Office of Public Counsel, an
interested party, after their request, based on their assurance that it would
be treated as confidential. EU is not willing to enter into a Confidentiality
Agreement with Ms. Cotherman “since she suffers no adverse
consequences from breaching that confidentiality.”
EU also argues that financial
statements of persons and entities that are not the regulated utility have been
recognized by the Commission many times as confidential and that there is no
factual or legal basis to support Ms. Cotherman’s Motion.
Analysis
Ms. Cotherman’s Motion
for Reconsideration, as amended, does not cite to any point of fact or law that
was overlooked, or that the Prehearing Officer failed to consider in rendering his
decision to grant EU’s Request for Confidential Classification. Her motion
argues that she and the public need to see the financial information to
determine EU’s financial ability to provide service to the proposed service
area. Her motion also argues that there has been a lack of any information
regarding installation or service costs. As already considered by the
Prehearing Officer, EU provided the confidential information for the
specific and limited purposes of satisfying the requirements of Rule
25-30.033(1)(h), F.A.C., and to enable the Commission to determine the ability
of the owners to provide the necessary financial support to the Applicant. The
confidential financial information of the owner is not related to any
ratemaking function with regard to the Utility, but will be used to determine
the owner’s financial viability to run the utility. The Commission, its staff, and parties with executed nondisclosure
agreements have access to the financial information, and will be able to use
that information to help determine EU’s financial ability to provide service as
part of its application, per Rule 25-30.033, F.A.C.
Conclusion
Staff recommends that Ms.
Cotherman’s Motion for Reconsideration, as amended, should be denied because it
does not meet the required standard for a motion for reconsideration. Ms.
Cotherman has failed to identify a point of fact or law that was overlooked or
that the Prehearing Officer failed to consider in rendering Order No.
PSC-2021-0087-CFO-SU, Order Granting Request for Confidential Classification.
Issue 2:
Should this docket be closed?
Recommendation:
No. The docket should remain open pending the
Commission’s action on the Utility’s application for an original wastewater
certificate. (Osborn, Crawford)
Staff Analysis:
The docket should remain open pending the
Commission’s action on the Utility’s application for an original wastewater
certificate.
