Florida Public Service Commission native order document 06717-2024

FILED 6/19/2024
DOCUMENT NO. 06717-2024
FPSC - COMMISSION CLERK
BEFORE THE FLORIDA PUBLIC SERVICE COMMISSION
In re: Petition for rate increase by Duke Energy 	DOCKET NO. 20240025-EI
Florid a, LLC. 	ORDER NO. PSC-2024-0198-PCO-EI
ISSUED: June 19 , 2024
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ORDER DENYING OFFICE OF PUBLIC COUNSEL' S MOTION TO SEVER
DUKE ENERGY FLORIDA, LLC' S PETITION FOR RATE INCREASE
RELATING TO THE SECOND AND THIRD TEST YEARS
Duke Energy Florida, LLC (DEF or Utility) filed its Petition for Rate Increase, minimum
filing requirements (MFRs), and testimony on April 2, 2024. Duke filed its MFRs based on
projected test years from January 1 to December 31 , 2025; January 1 to December 31, 2026; a nd
January 1 to December 31 , 2027. By Order No. PSC-2024-0092-PCO-EI, issued April 11 , 2024,
an administrative hearing has been scheduled for these matters for August 12 - 16, 2024. August
19 - 23, 2024, have also been reserved for the continuation and conclusion of this hearing, if
necessary.
Motion to Sever and Request for Oral Argument
On May 20, 2024, the Office of Public Counsel (OPC) filed a Motion to Sever DEF' s
Petition for Rate Increase Relating to the Second and Third Test Years. OPC argues in its Motion
that the last two of DEF's three proposed test years - January 1 to December 31 , 2026, and
January 1 to December 31, 2027 - 	should be severed from this proceeding, and that only
projected test year January 1 to December 31, 2025 should be the subject of the August final
hearing. OPC argues that it is prejudiced by the inclusion of three test years in this proceeding
because 	it 	lacks 	adequa te 	time 	to 	prepare 	"essentially 	three 	separate 	rate 	ca se s" 	while
simultaneously litigating a separate docket involving Tampa Electric Company. 1 OPC contends
that DEF would not be prejudiced by severing test years 2026 and 2027 because the Utility has
multiple other options for rate relief should its earnings fall below the bottom of its approved
range, and also because recovery through the clauses allows DEF avenues outside of base rates
to ensure adequa te revenue. OPC cites Rule 1.270(b), Florida Rules of Civil Procedure, as the
authority for the requested relief. 2
OPC 	filed 	a 	companion 	Request 	for 	Oral 	Argument 	on 	Motion 	for 	Severance
contemporaneously with the Motion. The Request asserts that oral argument would aid the
Commission in understanding and evaluating the Motion to Sever.
1 Docket No. 20240026-EI, In re: Petition f or rate increase by Tampa Electric Company.
2 "The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, crossclaim,
countercla im , or third-party claim or of any separate issue or of any number of claims, crosscla im s, counterclaims,
third-party claims, or issues ." Fla. R. Civ. P. l .270(b ).

ORDER NO. PSC-2024-0198-PCO-EI
DOCKET NO. 20240025-EI
PAGE 2
DEF Response to Motion
On May 28, 2024, DEF filed its Response to the Motion. DEF avers that OPC’s
arguments regarding scheduling and workload issues have been previously considered and
rejected in this docket. DEF further asserts that the arguments posed by OPC raise factual issues
that must be resolved by the Commission on a full record. DEF disagrees with OPC’s assertion
that the Utility would not be prejudiced if two of the test years were dismissed from this case,
noting the resources that have already been directed towards this rate case as filed. Finally, DEF
opposes OPC’s request for oral argument, and alternatively requests that it be allowed to
participate should oral argument be granted.
Analysis and Decision
The 	only 	Florida 	Rules 	of 	Civil 	Procedure 	that 	are 	expressly 	applicable 	to 	the
Commission as an agency are those governing discovery.3 Rule 1.270, Florida Rules of Civil
Procedure, which addresses consolidation and holding separate trials, and is cited by OPC as the
authority upon which relief may be granted, is not applicable to this proceeding. However, the
presiding officer does possess similar authority under Rule 28-106.211, Florida Administrative
Code (F.A.C.), to:
. . . 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. (emphasis added).4
Turning to the Motion to Sever under the standards in this rule, OPC’s arguments do not
demonstrate that bifurcation will promote the just, speedy, and inexpensive determination of all
aspects of the case. DEF has requested three test years, supported its request with testimony and
exhibits, and has the right to be heard on that request. The only factual issue argued by OPC in
support of bifurcation is workload, and that issue has been fully considered by the Prehearing
Officer5 and reconsidered by the full Commission. 6 OPC’s interrogatory limit has been expanded
to 1,000 in order to allow full discovery on all test years,7 and the docket indicates that rigorous
3 “[T]he Florida Rules of Civil Procedure apply to “actions of a civil nature and all special statutory proceedings in
the circuit and county courts of this state ....” Fla. R. Civ. P. 1.010. (Emphasis added). Only those rules of civil
procedure governing discovery apply in administrative proceedings. § 120.569(2)(f), Fla. Stat.” Collins v. Whole
Foods Market Ip, Inc., Order Denying Motion for Clerk’s Default, 2023 WL 10357560, at *1.
4 The document cited in footnote 4 of OPC’s Motion to Sever in support of is reliance on Rule 1.270 is Progress
Energy, Inc.’s Response in Opposition to Joint Motion to Sever, not an Order of the Commission. The Commission
Order Bifurcating Proceeding, which disposed of the Joint Motion to Sever, cited Rule 28-106.211, F.A.C., as
authority for the Prehearing Officer bifurcating the proceeding. Order No. PSC-06-1059-PCO-EI, issued December
22, 2006, in Docket No. 20060642-EI, In re: Petition for determination of need for expansion of Crystal River 3
nuclear power plant, for exemption from Bid Rule 25-22.082, F.A.C., and for cost recovery through fuel clause, by
Progress Energy Florida, Inc. The Order did not mention Rule 1.270.
5 Order Establishing Procedure (Order No. PSC-2024-0092-PCO-EI) at 11-12.
6 Document No. 03412-2024 (Commission Vote Sheet Denying OPC’s Motion for Reconsideration).
7 Order No. PSC-2024-0145-POC-EI.

ORDER NO. PSC-2024-0198-PCO-EI
DOCKET NO. 20240025-EI
PAGE 3
discovery is underway. The initial January 31, 2024, letter from DEF to the Chair of the
Commission gave notice that the Utility would be requesting three test years. The Chairman
confirmed DEF’s request for three test years by letter dated March 1, 2024, stating therein “that
the appropriateness of the selected test years may be an issue in the proceeding.” All parties have
presumably been undertaking their hearing preparation accordingly. To change course now and
set aside the preparatory work DEF has performed and the substantial discovery already
conducted on three test years would result in delay and added expense.
In addition to the workload arguments, OPC asserts that severance is appropriate because
the Commission allegedly lacks legal authority to consider three test years in one proceeding,
and any analysis of the two outlying years should be conducted “closer in time to 2026 and 2027
when the projections would be more reliable and less speculative.” The arguments raised by
OPC regarding the Commission’s authority and the reliability of forecasts over multiple test
years present questions of both law and fact that are appropriately decided by the full
Commission with the benefit of a complete hearing record and post-hearing filings from the
parties. For all of these reasons, the Motion to Sever shall be denied.
The Motion to Sever, which incorporates by reference arguments made in other
pleadings, contains all the information necessary to make a fully informed ruling. Therefore, the
Request for Oral argument shall be denied.
Therefore, it is
ORDERED by Commissioner Gabriella Passidomo, as Prehearing Officer, that the
Motion to Sever Duke Energy Florida, LLC’s Petition for Rate Increase Relating to the Second
and Third Test Years is denied. It is further
ORDERED that the Office of Public Counsel’s Request for Oral Argument on Citizens’
Motion for Severance is denied.

ORDER NO. PSC-2024-0198-PCO-EI
DOCKET NO. 20240025-EI
PAGE 4
By ORDER of Commissioner Gabriella Passidomo, as Prehearing Officer, this __ day
of __ _	_______,
SPS
Gabriella Passidomo
Commissioner and Prehearing Officer
Florida Public Service Commission
2540 Shumard Oak Boulevard
Tallahassee, Florida 32399
(850) 413-6770
www.floridapsc.com
Copies furnished: A copy of this document is
provided to the parties of record at the time of
issuance and, if applicable, interested persons.
NOTICE OF FURTHER PROCEEDINGS OR JUDICIAL REVIEW
The Florida Public Service Commission is required by Section 120.569(1), Florida
Statutes, to notify parties of any administrative hearing or judicial review of Commission orders
that is available under Sections 120.57 or 120.68, Florida Statutes, as well as the procedures and
time limits that apply. This notice should not be construed to mean all requests for an
administrative hearing or judicial review will be granted or result in the relief sought.
Mediation may be available on a case-by-case basis. If mediation is conducted, it does
not affect a substantially interested person's right to a hearing.
Any party adversely affected by this order, which is preliminary, procedural or
intermediate in nature, may request: (1) reconsideration within 10 days pursuant to Rule 25-
22.0376, Florida Administrative Code; or (2) judicial review by the Florida Supreme Court, in
the case of an electric, gas or telephone utility, or the First District Court of Appeal, in the case
of a water or wastewater utility. A motion for reconsideration shall be filed with the Office of
Commission Clerk, in the form prescribed by Rule 25-22.0376, Florida Administrative Code.
Judicial review of a preliminary, procedural or intermediate ruling or order is available if review
of the final action will not provide an adequate remedy. Such review may be requested from the
appropriate court, as described above, pursuant to Rule 9.100, Florida Rules of Appellate
Procedure.
19th
June 2024