STATE OF MISSOURI
PUBLIC SERVICE COMMISSION
At a session of the
Public Service Commission held at its office in Jefferson City on the 26th
day of June, 2013.
In
the Matter of Kansas City Power & Light Company's )
Practices
Regarding Customer Opt-Out of ) File No. EO-2013-0359
Demand-Side
Management Programs and Related Issues )
CONSENT
ORDER AND DISMISSAL
Issue Date: June 26, 2013 Effective Date: July 2, 2013
The Missouri Public Service Commission is:
·
Approving the disposition of this action by settlement because disposition
by settlement is in the public interest;
·
Incorporating
the Non‑Unanimous Stipulation and
Agreement’s terms into this order; and
·
Dismissing the action because the parties have resolved all
disputes.
The disputes involved provisions for customer
opt out of demand-side programs under the Missouri Energy Efficiency Investment
Act (“MEEIA”)[1] and
related law. This order does not determine the merits
of any claim or defense, including without limitation whether any violation of
statute or Commission tariff, regulation, or order (“violation”) occurred, and
whether any tariff not yet filed supports safe and adequate service at just and
reasonable rates.
Background
On January 18, 2013, Kansas City Power
& Light Company (“KCPL”) and the Commission’s staff (“Staff”) initiated
this action by filing the Joint
Application to Establish a Proceeding to Review [KCPL]’s Practices Regarding
Customer Opt-Out of Demand-Side Management Programs and Associated Programs'
Costs and Revenue Impacts (“application”).[2] The
application asked the Commission to open a contested case. The Commission
granted applications to intervene from:
·
Missouri Department of Natural Resources.[3]
·
Midwest Energy Users’ Association.
[4]
·
Midwest Energy Consumer’s Group (“MECG”); [5]
and granted an application to
intervene out of time from Midwest Industrial Energy Consumers (“MIEC”). [6]
In response to a Commission order to state
the relief sought, cite the authority for granting it, and allege facts under
which that authority applies, KCPL and Staff filed further pleadings.[7] Among the relief sought in those
responses was an order authorizing deferred recording for certain accounting
entries (“AAO”)[8] and a finding that KCPL had violated
a statute or Commission tariff, regulation, or order (“complaint”). The
Commission then issued a notice of contested case.[9]
KCPL, Staff, MECG, and MIEC
(“signatories”) filed the settlement. [10] No party objected to the settlement
within seven days, so the Commission will treat the settlement as unanimous, as
the Commission’s regulation provides. [11] The settlement includes a waiver of
procedural formalities[12] including a hearing.[13] Because no party seeks an evidentiary
hearing, no hearing is required.[14] The Commission must state its conclusions
of law[15] but need not separately state any findings
of fact when a stipulation, agreed settlement, or a consent order disposes of a
case.[16]
On those grounds, the Commission
independently finds, concludes, and orders the following.
Findings,
Conclusions, and Order
Because
KCPL is an electrical company,[17] the
Commission has jurisdiction generally over KCPL’s operations.[18] The
Commission has specific authority to determine a complaint [19]
and to issue a consent order. [20]
The Commission does not have authority to issue an advisory opinion.
[21]
The settlement sets forth the
agreement of the signatories, including:
·
MECG
will dismiss its action in Case No. WD76164 at the Court of Appeals. [22]
·
KCPL’s
filing of tariff sheets, [23]
specimens of which are attached. [24]
·
The
Commission’s issuance of an AAO. [25]
The
signatories also seek the Commission’s approval
of the
settlement.[26]
A.
Terms
But the Commission’s approval
of the settlement cannot mean a decision on the merits for several
reasons.
·
Actions
before the Court of Appeals are outside the
Commission’s subject matter jurisdiction,[27]
so the Commission cannot order dismissal of such an action.
·
No
tariff sheet as described in the settlement has yet been filed, so a decision
on its merits would constitute an advisory opinion. [28]
·
Issuance
of an AAO is unsupported by evidence or stipulated
facts, relevant to the law that provides when such relief should issue.
[29]
As to the complaint, a
conclusion that no violation exists would support no relief under the
complaint, and the settlement includes no stipulation to a violation. Therefore
the Commission concludes that the signatories have not shown that the
Commission can and should approve their terms.
B.
Disposition
Nevertheless, a
Commission’s determination on the settlement is apt because the Commission is
not merely a tribunal. The Commission discussed a similar situation in an
earlier decision.[30] Though not binding on the Commission, the analysis
in that decision is persuasive.
The disposition of any
complaint is subject to the Commission’s determination of the public interest. [31] That is because the elements
of a complaint always include a violation of statute or Commission tariff,
regulation, or order:
Complaint
may be made by the commission of its own motion, or by [other entities] in
writing, setting forth any [conduct of] any . . . public utility . . . claimed
to be in violation, of any provision of law, or of any rule or order or
decision of the commission [.[32]]
Generally, every statute,
Commission tariff, regulation, or order implicates the public interest if it relates to “efficient facilities and substantial
justice between patrons and public utilities.”[33]
Partly for that reason, OPC is a party to this action[34]
so that an advocate for the public interest[35] always
remains whatever private parties like a utility and its industrial
customers—and even Staff—may agree to.
The
public interest is plainly more urgent in, for example, alleged pervasive
safety violations than an isolated billing dispute with a sophisticated
business entity. But this action relates to efficient facilities, and
substantial justice between patrons and public utilities, because the application
relates to MEEIA and other provisions of law. Those provisions state that:
·
Demand-side management (“DSM”) program participation
and payment are optional for certain customers,[36]
·
KCPL shall not charge the customer for any DSM
program under MEEIA or by any other authority upon notice from a customer to
KCPL,[37]
and
·
the notice is effective for the following
calendar year and each successive calendar year. [38]
And, unlike
a private party or State agency, Staff has no authority of its own to settle an
action, so Commission approval of Staff’s participation in the settlement in
this action is necessary.
C. Ruling
The Commission concludes that
disposition by settlement is in the public interest so the Commission will
approve that disposition. [39] The Commission will also issue this consent order that, by
analogy to a consent judgment, memorializes the signatories’ terms without determining
their merits.[40] There
being no further relief for the Commission to grant, the Commission will also dismiss
this action and cancel the hearing.
THE COMMISSION
ORDERS THAT:
1.
Disposition by settlement is approved.
2.
The terms of the Non-Unanimous
Stipulation and Agreement are memorialized,
by incorporating them by reference into this order, as if fully set forth
3.
This action is dismissed
as of the effective date of this order.
4.
This order shall be effective on July 2, 2013.
5.
This file shall close on July
4, 2013.
BY THE COMMISSION
Morris L. Woodruff
Secretary
R.
Kenney, Chm., Jarrett, Stoll, and
W.
Kenney, CC., concur.
Jordan,
Senior Regulatory Law Judge
[1] Section 393.1075, RSMo Supp. 2012.
[2] Electronic Filing and Information
System (“EFIS”) No. 1.
[3] EFIS No. 18, Order Granting Intervention, March 15, 2013.
[4] EFIS No. 18, Order Granting Intervention, March 15, 2013.
[5] EFIS No. 18, Order Granting Intervention, March 15, 2013.
[6] EFIS No. 20, Order Granting Late Intervention, March 20, 2013.
[7] EFIS Nos. 27 and 28.
[8] AAO is an acronym for “accounting
authority order.”
[9] EFIS No. 20, Notice of Contested Case and Procedural Schedule.
[10] EFIS No. 36, Non‑Unanimous Stipulation and Agreement.
[11] 4 CSR 240-2.115(2)(C).
[12] Section 536.060(3), RSMo 2000.
[13] Sections 536.060, RSMo 2000.
[14] State
ex rel. Rex Deffenderfer Ent., Inc. v. Public Serv. Comm’n, 776
S.W.2d 494, 496 (Mo. App., W.D. 1989).
[15] Section 386.420.2, RSMo 2000.
[16] Section 536.090, RSMo 2000.
[17] [KCPL]’s
Initial Pleading and Notice of Relief Requested, EFIS No. 28, page 2-3,
paragraph 5-6.
[18] Section 393.140(1), RSMo 2000.
[19] Section 386.390.1, RSMo 2000.
[20] Section 536.060, RSMo 2000.
[21] State
ex rel. Laclede Gas Co. v. Public Serv. Comm'n of State of Mo, 392
S.W.3d 24, 38 (Mo. App., W.D. 2012).
[22] EFIS No. 36, Non‑Unanimous Stipulation and Agreement, page 4-5, paragraph 5.D.
[23] EFIS No. 36, Non‑Unanimous Stipulation and Agreement, page 2, paragraph 5.A.
[24] EFIS No. 36, Non‑Unanimous Stipulation and Agreement, Attachment A.
[25] EFIS No. 36, Non‑Unanimous Stipulation and Agreement, page 5, paragraph 5.G.
[26] EFIS No. 36, Non‑Unanimous Stipulation and Agreement, page 8.
[27] Missouri Constitution, Art. II,
Section 1.
[28] Akin v. Director of Revenue,
934 S.W.2d 295, 298 (Mo. banc 1996).
[29] 18 CFR Part 101, which includes the Uniform System of Accounts
Prescribed for Public Utilities and Licensees subject to the provisions of the Federal Power Act, incorporated to
Missouri law at 4 CSR 240-20.030(1).
[30] Superior
Bowen Asphalt Company, LLC, Complainant vs. Southern Union Company d/b/a
Missouri Gas Energy, Respondent, File No. GC-2011-0101, EFIS No. 54, Consent Order and Dismissal with Prejudice
issued May 9, 2012.
[31] The Commission’s regulation on
summary determination expressly provides that the Commission will not grant a
motion for summary determination unless summary determination procedure is in
the public interest. A ruling that summary determination procedure is in the
public interest is implicit when the Commission grants a motion for summary
determination. 4 CSR 240-2.117(1); Public Serv. Comm'n of State of Missouri
v. Missouri Gas Energy, 388 S.W.3d 221, 228 (Mo. App., W.D. 2012). Here,
the Commission is making no determination other than whether the procedure is
in the public interest, so an implicit ruling is impossible, and an express
ruling is necessary.
[32] Section 386.390.1, RSMo 2000.
[33] Public
Serv. Comm'n of State v. Missouri Gas Energy, 388 S.W.3d 221, 228 (Mo.
App., W.D. 2012).
[34] 4 CSR 240-2.010(10).
[35] Section 386.710.1(3), RSMo 2000.
[36] Sections 393.1075.7,
RSMo Supp. 2012.
[37] Sections 393.1075.7, .8, .9, and .10,
RSMo Supp. 2012, and 4 CSR 240-20.094(6)(F).
[38] 4 CSR
240-20.094(6)(F).
[39] Undisputed resolution of this action
constitutes good cause for an effective date less than 30 days from issuance. Section 386.490.2, RSMo 2000.
[40] Nations v. Hoff, 78 S.W.3d 222, 223 (Mo. App., E.D. 2002).