Case Background
Duke Energy
Florida, LLC (DEF or Utility) provides electric service to approximately 2
million customers across the state. DEF filed its Petition for Rate Increase,
minimum filing requirements (MFRs), and testimony on April 2, 2024. DEF filed
its MFRs based on three projected test years, from January 1 to December 31,
2025; January 1 to December 31, 2026; and January 1 to December 31, 2027.
OPC’s
intervention in this docket was acknowledged by Order No. PSC-2024-0041-PCO-EI,
issued February 26, 2024. On April 19, 2024, intervention in this proceeding was
granted to Florida Rising and the League of United Latin American Citizens of
Florida (LULAC); Florida Industrial Power Users Group (FIPUG); Florida Retail
Federation (FRF); and Sierra Club. On April 24, 2024, intervention was granted
to White Springs Agricultural Chemicals, Inc. d/b/a PCS Phosphate - White
Springs (PCS Phosphate); and Nucor Steel Florida, Inc. (Nucor). Petitions for
Intervention are pending for Southern Alliance for Clean Energy (SACE) and
Americans for Affordable Clean Energy, Inc.; Circle K Stores, Inc.; RaceTrac
Inc.; and Wawa, Inc. (Fuel Retailers) as of the date of filing of this
recommendation.
On
March 8, 2024, OPC filed a Motion for Expedited Joint Docket Scheduling
Conference, together with an April 3, 2024 supplement to that motion, by which
OPC requested a conference “to consider fair and equitable key activities and
hearing dates, consistent with due process.” DEF responded in opposition on
April 3, 2024, stating that OPC’s proposed schedule does not provide adequate
time for post-hearing proceedings. OPC’s request for a scheduling conference
was denied as its motion set forth in detail OPC’s arguments and proposed
controlling dates. Having considered the parties’ proposals, the Order
Establishing Procedure (OEP) No. PSC-2024-0092-PCO-EI, issued April 11, 2024,
established controlling dates and procedures for this proceeding, including for
the filing of prefiled testimony and exhibits, conducting discovery, and other
prehearing and hearing activities. Included among these events was the
requirement that, in advance of the hearing, parties provide electronic copies
of all exhibits they intend to offer into evidence at the hearing. Finally, the
OEP scheduled these matters for an administrative hearing for August 12–16,
2024, with August 19–23, 2024, reserved for the continuation and conclusion of
this hearing, if necessary.
On
April 22, 2024, OPC timely filed a Motion for Reconsideration or, in the
Alternative, Motion for Continuance (OPC Motion), concurrently with a request
for oral argument on its Motion. OPC’s Motion was filed with respect to this
docket as well as Docket No. 20240026-EI, In
re: Petition for rate increase by Tampa Electric Company. As these dockets
are not consolidated, a separate recommendation will be filed with respect to the
Tampa Electric Company (TECO) rate case, in Docket No. 20240026-EI. In its
Motion, OPC argues that the “severely compressed” hearing schedule established
by the OEP does not allow sufficient time for the intervenors to prepare
testimony and doesn’t account for the workload created by DEF requesting three
projected test years, and that scheduling the DEF and TECO hearings within
three weeks of each other unfairly prejudices OPC’s ability to represent the
customers of DEF and TECO. OPC contends that DEF is not entitled to have its
rates go into effect on January 1, 2025, and the certainty that OPC does not
have enough time to prepare its case for the TECO and DEF hearings outweighs
the possibility that the statutory timeline may need to be delayed.
Joinders
to OPC’s Motion were filed by LULAC (April 22), PCS Phosphate (April 23),
Sierra Club (April 24), and FRF (April 29), contending that the time afforded
for the intervenors to conduct discovery and prepare their case is unfairly
curtailed, especially given the magnitude of the requested increase and the
complexity of the issues presented.
On
April 29, 2024, DEF filed a Response in Opposition (Response) to OPC’s Motion
and OPC’s request for oral argument. DEF contends that OPC’s arguments essentially
say the same thing as OPC’s initial March 8, 2024 Motion for Expedited Joint
Docket Scheduling Conference: that OPC believes it does not have adequate time
to prepare its case. DEF contends that OPC has not identified any new
information that would justify reconsideration of the OEP; therefore, OPC’s
Motion should be denied.
This
recommendation addresses OPC’s Request for Oral Argument and Motion for
Reconsideration, and the joinders and Response thereto. The Commission has
jurisdiction over this matter pursuant to Chapter 366, Florida Statutes (F.S.),
including Section 366.06, F.S.
Discussion
of Issues
Issue 1:
Should OPC’s Request for Oral Argument on its Motion
for Reconsideration of Order No. PSC-2024-0092-PCO-EI be granted?
Recommendation:
No. Staff believes that the pleadings are sufficient
on their face for the Commission to evaluate and rule on the Motion. However, if
the Commission wants to exercise its discretion to hear oral argument, staff
recommends that 5 minutes per side is sufficient. (Crawford)
Staff Analysis:
Law
Rule 25-22.0022(1), Florida Administrative Code (F.A.C.),
allows a party to request oral argument before the Commission for any
dispositive motion (such as motions for reconsideration) by filing a separate
written pleading filed concurrently with the motion on which argument is
requested, and stating with particularity why oral argument would aid the
Commission. Granting or denying oral argument is within the sole discretion of
the Commission under Rule 25-22.0022(3), F.A.C.
OPC’s Position
OPC requests the opportunity to provide 15 minutes of oral
argument on the Motion to further elaborate on its arguments and to aid the
Commissioners in understanding and evaluating the issues it raises as well as
answer any questions.
DEF’s Position
In its Response, DEF argues that oral argument isn’t
necessary, as the Commission can make its decision based on the written
filings. However, if oral argument is permitted, DEF will participate.
Conclusion
Granting or denying oral argument is within the sole
discretion of the Commission. Staff believes that the pleadings are sufficient
on their face for the Commission to evaluate and decide OPC’s Motion. However,
if the Commission wants to exercise its discretion to hear oral argument, staff
recommends 5 minutes per side is sufficient.
Issue 2:
Should Reconsideration of Order No. PSC-2024-0092-PCO-EI
or a continuance of this proceeding be granted?
Recommendation:
No. Reconsideration should be denied because the
request for reconsideration fails to raise a point of fact or law that the Prehearing
Officer overlooked or failed to consider in rendering their decision. A
continuance should not be granted as OPC has failed to provide adequate grounds
for doing so, in contravention of the statutory time frames established by
Section 366.06(3), F.S. (Crawford)
Staff Analysis:
Law
The appropriate standard of review for reconsideration of
a Commission order is whether the motion identifies a point of fact or law that
the Commission overlooked or failed to consider in rendering the order under
review. 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). 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, Inc., 294 So. 2d at 317.
OPC’s Motion for Reconsideration
In its Motion, OPC acknowledges that the standard of
review on a motion for reconsideration is whether the motion identifies a point
of fact or law that the Commission either overlooked or failed to consider.
However, OPC argues that a de novo
standard of review should apply in this case because the underlying order is a
procedural order that hasn’t been issued by the full Commission or been the
subject of a hearing.
With respect to the merits of its Motion, OPC requests the
Commission to reconsider the hearing schedules for six reasons: (1) intervenors
have insufficient time to prepare testimony; (2) the utilities could have
easily avoided this scheduling “disaster” and are not entitled to new rates by
January 1, 2025; (3) the current ratemaking framework cannot fully accommodate
analysis of DEF’s three proposed test years simultaneously and then
contemporaneously with the TECO rate case docket; (4) Commission staff does not
have sufficient time to conduct their standard audit; (5) the certainty that
OPC does not have enough time to prepare their cases outweighs the possibility
that the timeline may need to be delayed; and (6) asymmetrical advance
knowledge of the hearing dates created
additional harm to intervenors. OPC also contends that it is burdensome
and a violation of due process to require the parties to provide, in advance of
the hearing, electronic copies of all exhibits they plan to offer into evidence
at the hearing.
Joinders by LULAC, PCS Phosphate, Sierra Club, and FRF
On April 22, 2024, LULAC filed a Notice of Joinder in
Citizens’ Motion. LULAC noted that, in addition to the arguments put forth by
OPC, LULAC had to wait for intervention to be granted before it could file
enforceable discovery.
On April 23, 2024, PCS Phosphate filed a Response in
Support of Citizens’ Motion, echoing OPC’s contention that the procedural
timeline established does not provide sufficient time to evaluate DEF’s petition,
develop testimony, and prepare for a hearing. PCS Phosphate further contends
that the twelve day advance submission of cross-examination exhibits will
result in a prolonged hearing and, therefore, supports Citizens’ request for
reconsideration.
On April 24, 2024, Sierra Club filed a Notice of Joinder
in Citizens’ Motion. Sierra Club argues that the current hearing schedules in
the Duke and TECO rate cases prejudice its ability for a fair hearing and joins
OPC’s Motion requesting reconsideration of the hearing schedule.
On April 29, 2024, FRF filed a Notice of Joinder in
Citizens’ Motion and argues it has a substantial interest in having the
Commission grant the relief requested by the Motion.
No other parties provided comment in support of OPC’s
Motion.
DEF’s Response in Opposition
On April 29, 2024, DEF filed a
Response in Opposition to OPC’s Motion. DEF argues OPC has not identified a
mistake of law or fact that would justify reconsideration of the hearing
schedule. DEF contends that OPC was well aware of both DEF and TECO filing
their respective rate cases in 2024 and notes that the current hearing schedule
is consistent with the statutory time frames established in Section 366.06(3),
F.S. As to the issue of “asymmetric advance knowledge,” DEF notes that there is
no evidence DEF had advance knowledge of the hearing schedule but, even if it
did, it would not be improper or lead to harm that would justify a scheduling
change. Finally, DEF notes that OPC’s alternative request to continue the
hearing is, functionally, simply a request for reconsideration and requests
that OPC’s Motion be denied.
Analysis
Motion for Reconsideration
OPC contends that
the Commission should review its Motion on a de novo basis rather than
“the ordinary standard for reconsideration.” OPC contends a mistake of fact or
law standard does not fit this scenario because the matters for which OPC seeks
review have either not been previously considered by the majority of the
Commission, or have not been the subject of a hearing. However, the setting of
a procedural schedule for a hearing-track docket is a function of the
Prehearing Officer’s duties, not those of the Commission as an agency, nor are
such procedural matters appropriate for an evidentiary hearing. Further, the
Commission has held that a mistake of fact or law standard applies to
reconsideration by the Commission of a Prehearing Officer’s order.
The Prehearing Officer is the
procedural administrator of a hearing-track case. They rule on motions and
procedural matters and conduct prehearing conferences, prior to referral of
such cases to the Commission for final decision. Pursuant to Rule 28-106.211,
F.A.C., the Prehearing Officer may issue any orders necessary to effectuate
discovery, to prevent delay, and to promote the just, speedy, and inexpensive
determination of all aspects of the case, including bifurcating the proceeding.
“The Prehearing Officer has wide discretion in balancing the interests of
parties in the furtherance of the orderly administration of justice.” The
schedule approved by a Prehearing Officer is controlled in part by the
selection of hearing dates by the Chairman, which is in turn based upon the
availability of the Commission’s calendar and the existence of any applicable
statutory deadlines.
The statutory deadlines in this docket are established
under Section 366.06(3), F.S., which requires the Commission to take action on DEF’s
proposed final rates within eight months. If the Commission does not act by the
end of this eight month period, pursuant to Section 366.06(3), F.S., DEF is
entitled to place its proposed rates into effect, subject to refund. The
statute further provides that the Commission must take final action in the
docket and enter its final order within 12 months of the commencement date for
final agency action. The official filing date for this proceeding is April 2,
2024, pursuant to Section 366.06(3), F.S. Therefore, the eight month period
expires on December 2, 2024. Before the Commission can take a final vote on DEF’s
proposed rates, there are a number of post-hearing activities that must take
place: post-hearing briefs are filed by the parties, and two post-hearing
recommendations and two post-hearing votes take place – one on the revenues,
and one on the final rates. The OEP in this docket balances the needs of both
pre-hearing and post-hearing process, for the parties, staff, and
Commissioners, consistent with the deadlines under Section 366.06(3), F.S.
Adherence to the eight month clock is a consistent and appropriate Commission
practice. The schedule in this docket isn’t driven by DEF wanting new rates to
be placed in effect by January 1, 2025; it’s driven by when the companies elect
to file their case, which is not a matter susceptible to the Commission’s
control, and the requirements of the Commission’s authorizing statutes.
As to requiring the provision of exhibits in advance of
the hearing, Rule 28-106.209, F.A.C., provides that any time after a matter has
been filed with an agency, the presiding officer can direct the parties to
confer for the purpose of examining documents and other exhibits. The purpose
of discovery is to eliminate the element of surprise, encourage settlement, and
to assist in arriving at the truth.
The exchange of exhibits in advance of hearing is a common feature in
proceedings before the Division of Administrative Hearings, and was used in a
number of virtual hearings before the Commission during the pandemic. The
requirement that parties and staff list and exchange all exhibits in advance of
the hearing promotes due process, transparency, and judicial economy.
Finally, much of OPC’s argument
on reconsideration repeats matters raised in its Motion for Expedited Joint
Docket Scheduling Conference, which the Prehearing Officer considered in
setting the hearing schedule. It is not appropriate to reargue matters on
reconsideration that have already been considered. OPC has not clearly
identified any specific mistakes of fact or law the Prehearing Officer made in
issuing the OEP. Without a specific mistake of fact or law, a motion for reconsideration
must be denied, even if the reviewing body would have reached a different
decision.
Based on the above, OPC’s Motion for Reconsideration should be denied.
Alternative Request for Continuance
In the alternative, OPC moved the Commission to continue
the final hearings scheduled in the DEF and TECO dockets and to adjust the
major activity dates correspondingly. OPC argued it has met the burden
established by Rule 28-106.210, F.A.C., which governs motions for continuance
and grants the presiding officer the authority to continue a hearing for good
cause shown. Generally, hearing officers enjoy broad discretion when ruling on
motions to continue.
Section 366.06(3), F.S., establishes an 8 month time period during which the
Commission can withhold its consent to the operation of rates proposed by a
Utility and after which the rates take effect subject to refund. The dates
established by the OEP are designed to allow the parties and Commission staff the
maximum time to prepare for and conduct the final hearings in these matters
within that statutory framework. Any delay in the established schedule
increases the likelihood that the proposed rates will go into effect subject to
refund and therefore the Motion for Continuance should be denied and the
hearing and major activity dates established by the OEP should remain in place.
Conclusion
For the reasons discussed above, staff recommends that
OPC’s Motion for Reconsideration and Alternative Request for Continuance be denied.
Issue 3:
Should this docket be closed?
Recommendation:
No. This docket should remain open pending the
Commission’s final resolution of DEF’s requested permanent base rate increase.
(Crawford)
Staff Analysis:
This docket should remain open pending the
Commission’s final resolution of DEF’s requested permanent base rate increase.
