Florida Public Service Commission native order document 04540-2024

FILED 6/4/2024
DOCUMENT NO. 04540-2024
FPSC - COMMISSION CLERK
BEFORE THE FLORIDA PUBLIC SERVICE COMMISSION
In re: Petition for rate increase by Duke Energy 	DOCKET NO. 20240025-EI
Florida, LLC. 	ORDER NO. PSC-2024-0184-PCO-EI
ISSUED: June 4, 2024
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ORDER GRANTING PETITION TO INTERVENE
BY AMERICANS FOR AFFORDABLE CLEAN
ENERGY, INC ., C IRCLE K STORES, INC.,
RACE TRAC, INC., AND WA WA, INC.
Duke Energy Florida, LLC (Duke 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 te st 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.
Petition for Intervention
On April 24, 2024, Americans for Affordable Clean Energy, Inc. (AACE), Circle K
Stores, Inc., (Circle K) , RaceTrac, Inc. (RaceTrac) and Wawa, Inc. (Wawa) filed a Petition to
Intervene in this proceeding. The Petition makes the following allegations as to each petitioning
intervenor:
1. 	AACE
AACE is a nonprofit association of fuel retailers. AACE seeks intervention on behalf of
"its five fuel retailer members in Florida," who collectively own and operate over 1,500
convenience stores, public travel facilities, and truck stops in the state. These locations offer fuel ,
goods, services, a nd other amenities. All members of AACE for whom intervention is sought are
energy customers (ratepayers) of Duke, and rely on electricity to offer fuel and other services.
Electric vehicle (EV) charging stations have been or may be deployed at some of the locations
owned and operated by AACE members. 	The membership of AACE includes 	Circle K,
RaceTrac, and Wawa.
2. 	Circle K
Circle K has over 60 years experience in the convenience retailing industry, and is
currently the global brand of Alimentation Couche-Tard, Inc., which operates more than 16 ,7 00
stores in 29 countries and territories. Circle K operates approximately 150 convenience stores in

ORDER NO. PSC-2024-0184-PCO-EI
DOCKET NO. 20240025-EI
PAGE 2
Duke’s territory, and pays the Utility substantial amounts for electricity. Circle K operates EV
chargers outside of Duke’s territory, but “looks to expand its EV charging services.”
3. 	RaceTrac
RaceTrac has been in business for 90 years and, together with affiliate RaceWay,
currently operates over 800 stores over its entire footprint. RaceTrac has 78 refueling stations
and one Store Support Center in Duke’s territory. RaceTrac pays the Utility substantial amounts
for electricity. RaceTrac offers EV chargers outside of Duke’s territory, and looks to expand its
EV charging services.
4. 	Wawa
Wawa currently operates 1,020 convenience stores, approximately 865 of which have
motor vehicle refueling stations. Wawa has 79 locations in Duke’s territory, 17 of which have
EV charging stations, and plans to add 39 EV charging stations in the next 10 years. Wawa pays
the Utility substantial amounts for electricity, and affordable and reliable electrical service is
necessary for its operations.
DEF Response to Petition to Intervene
In its Response to the Petition, Duke states that it has verified that Circle K, RaceTrac,
and Wawa (collectively “Fuel Retailers”) are retail customers of the Utility. Duke raises no
objection to the Fuel Retailers intervening as ratepayers of the Utility.
As to AACE, Duke raises no objection to the legal sufficiency of the allegations relating
to standing. However, Duke questions whether AACE will be able to factually support the
allegations and prove standing. Duke notes that AACE alleges that a substantial number of its
members are ratepayers of the Utility, but does not provide a number or percentage. Duke also
questions whether the general allegations made by AACE regarding its associational purpose and
the relief it seeks for its members can ultimately be supported by facts that would allow the
Commission to grant standing and afford relief to AACE.
Duke also argues that limitations should be placed on the “standing rights” of AACE and
the Fuel Retailers. Duke avers that the intervenors’ arguments regarding market competition and
business interests and potential impacts on the EV market are beyond the scope of this
proceeding. Duke also argues that concerns regarding the impact of green hydrogen on future
fuel markets are too abstract and speculative to support standing.
The Fuel Retailers and AACE filed a “Response to Duke Energy’s Motion to Limit Fuel
Retailers’ Intervention,” and therein argued that the portion of Duke’s Response requesting a
limitation on standing was itself a motion and should be denied.

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Standards for Intervention
Pursuant to Rule 28-106.205, Florida Administrative Code (F.A.C.), persons, other than
the original parties to a pending proceeding, who have a substantial interest in the proceeding
and who desire to become parties may move for leave to intervene. 	Motions for leave to
intervene must be filed at least twenty (20) days before the final hearing, must comply with Rule
28-106.204(3), F.A.C., and must include allegations sufficient to demonstrate that the intervenor
is entitled to participate in the proceeding as a matter of constitutional or statutory right or
pursuant to Commission rule, or that the substantial interests of the intervenor are subject to
determination or will be affected through the proceeding. Intervenors take the case as they find
it.
The Fuel Retailers each argue that they are persons whose substantial interest may be
impacted and, therefore, have standing to intervene as a party1 under Agrico Chemical Company
v. Department of Environmental Regulation, 406 So. 2d 478 (Fla. 2d DCA 1981) (Agrico).
Under the standing test established in Agrico, an individual seeking to intervene in an
administrative proceeding must show that (1) he will suffer injury in fact that is of sufficient
immediacy to entitle him to a Section 120.57, F.S., hearing, and (2) the substantial injury is of a
type or nature that the proceeding is designed to protect. 406 So. 2d at 482. The first aspect of
the test deals with the degree of injury. 	The second deals with the nature of the injury. 	The
“injury in fact” must be both real and immediate and not speculative or conjectural. International
Jai-Alai Players Assn. v. Florida Pari-Mutuel Commission, 561 So. 2d 1224, 1225-26 (Fla. 3d
DCA 1990); see also Village Park Mobile Home Assn., Inc. v. State Dept. of Business
Regulation, 506 So. 2d 426, 434 (Fla. 1st DCA 1987), rev. den., 513 So. 2d 1063 (Fla. 1987)
(speculation on the possible occurrence of injurious events is too remote).
AACE argues that it has associational standing to represent its members, including the
Fuel Retailers, under Florida Home Builders v. Dept. of Labor and Employment Security, 412
So. 2d 351 (Fla. 1982) (Florida Home Builders). Under the test established in Florida Home
Builders, an association seeking standing on behalf of its members must demonstrate that: (1) a
substantial number of its members may be substantially affected by the agency’s decision; (2) the
subject matter of the proceeding is within the association’s general scope of interest and activity;
and (3) the relief requested is of a type appropriate for the association to receive on behalf of its
members. 412 So. 2d at 353-54.
Analysis & Ruling
The Fuel Retailers allege that they are retail energy customers of the Utility, and that their
substantial interests as ratepayers will or may be affected by Duke’s request for a rate increase.
Duke raised no objection to the Petition as it relates to these the Fuel Retailers, and “concedes
that they have the substantial interest necessary to support standing to intervene.” Accordingly,
the Petition shall be granted as to Circle K, RaceTrac, and Wawa.
1 See Fla. Stat. § 120.52(13)(b).

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Taken as true, the allegations in the Petition regarding associational standing for AACE
comply with the standard established in Florida Home Builders. Duke does not contest the
sufficiency of those allegations. Therefore, the Petition shall be granted as to AACE.
While not requesting that the Petition be denied or found legally insufficient on its face,
Duke questions whether the assertions in the Petition made in support of AACE’s standing can
be supported with record evidence, and whether the law will ultimately support a determination
of standing based on the evidence presented. So that it may test the veracity of the allegations,
Duke expressly reserved its right to engage in discovery. Accordingly, Duke may conduct
discovery regarding the allegations made by AACE and any of the Fuel Retailers in support of
their standing. Intervenors bear the ultimate burden of proof to demonstrate standing.
As noted above, Duke argues that limitations should be placed on the “standing rights” of
AACE and the Fuel Retailers. The determination in this Order that the Petition shall be granted
as to AACE and the Fuel Retailers is based solely upon the status of the individual intervenors
and association members as Duke ratepayers. Intervention is not being granted based upon the
alleged impacts of EV charger programs or the development of green hydrogen as an alternative
fuel on economic interests or business competition. Such claims are beyond the scope of a base
rate proceeding.2 The impact of EV charger programs and green hydrogen on base rates and
Duke ratepayers may or may not present appropriate issues for consideration in this docket. If
necessary, this determination will be made by the Prehearing Officer in the Prehearing Order.
Based on the above representations, it is
ORDERED by Commissioner Gabriella Passidomo, as Prehearing Officer, that the
Petition to Intervene filed by Americans for Affordable Clean Energy, Inc., Circle K Stores, Inc.,
RaceTrac, Inc. and Wawa, Inc. is hereby granted as set forth in the body of this Order. It is
further
ORDERED that Americans for Affordable Clean Energy, Inc., Circle K Stores, Inc.,
RaceTrac, Inc. and Wawa, Inc. take the case as they find it. It is further
2 Order No. PSC-2021-01510PCO-EI, issued April 22, 2021, in Docket No. 20210016-EI, In re: Petition for limited
proceeding to approve 2021 settlement agreement, including general based rate increases, by Duke Energy Florida,
LLC. (“broad economic competition-based arguments for standing also do not satisfy the second prong of the Agrico
test, because the injury . . . is not of a type or nature that this proceeding is designed to protect”).

PSC-2024-0184-PCO-EI
4th
June 2024
ORDER NO.
DOCKET NO. 20240025-EI
PAGES
ORDERED that all parties to this proceeding shall furnish copies of all testimony,
exhibits, pleadings, and other documents which may hereinafter be filed in this proceeding to:
Frederick L. Aschauer, Jr., Esq.
Allan J. Charles, Esq.
Lori Killinger, Esq.
Lewis, Longman & Walker, P.A.
106 East College Avenue, Suite 1500
Tallahassee, Florida 32301
(850) 222-5702
fascbauer@llw-law.com
acharles@llw-law.com
lkillinger@llw-law.com
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 PROCEEDlNGS 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.

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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.