Florida/Georgia Personal Injury & Workers Compensation

...Florida law, is required to be certified in accord with the various requirements of the Siting Act in chapter 403, Florida Statutes. [4] As part of the process, an applicant seeks a determination of need from the PSC for a proposed power plant. See § 403.519, Fla. Stat. (1997). [5] The PSC's granting of a *430 determination of need for a proposed power plant creates a presumption of public need. See § 403.519, Fla....

...*431 In this appeal, appellants are public utilities that are regulated and authorized by the PSC to generate and sell electrical power to users of the power in Florida. Appellants designate themselves as Florida retail utilities. Appellants contend that section 403.519, Florida Statutes, from its initial adoption in 1980 through subsequent legislative changes and up to the present date, does not authorize the PSC to grant a determination of need to an entity other than a Florida retail utility regul...

...Another milestone is a FERC order issued in 1996 which affects power distribution. [10] Appellants note that these federal initiatives occurred subsequent to the Legislature's enactment of the Siting Act of 1973. Appellants also emphasize that the Legislature has not amended section 403.519 to authorize the PSC to grant a determination of need for a power plant in Florida that would generate power intended to be sold in the competitive wholesale market which is developing as a result of these federal legislative and regulatory changes. Appellants contend that Duke is not an authorized applicant under section 403.519 because Duke is not a Florida retail utility....

...Appellants contend that joining with New Smyrna, which is a proper applicant, does not cure the fact that Duke is not a proper applicant in view of the commitment to New Smyrna of just thirty megawatts of the 514-megawatt capacity of the plant. [11] Appellants contend that the proposed plant is not authorized by section 403.519 because all but the thirty megawatts that New Smyrna has agreed to buy is uncommitted....

...The three-member majority's rationale is presented by the PSC as an appellee in this Court. In the PSC order at issue here, the PSC majority finds that Duke and New Smyrna are proper applicants pursuant to the Siting *432 Act, FEECA, and the Florida Administrative Code. Order at 18-29. The majority construes section 403.519 as requiring, pursuant to section 403.503(4), Florida Statutes (1997), that an applicant may be any "electric utility." Id....

...erators. The PSC points out that it specifically limited its decision to the facts of those qualified-facilities cases. Id. at 32. In her dissenting opinion, Commissioner Clark construes the Siting Act and FEECA to mean that a proper applicant under section 403.519 is defined for purposes of FEECA, of which section 403.519 is a part, as "any person or entity of whatever form which provides electricity or natural gas at retail to the public....

...subject to PSC regulatory authority. Id. at 66. She notes that "wholesale sales are a matter within the sphere of federal regulation." Id. Commissioner Clark cites this Court's Nassau cases in support of her interpretation of the term "applicant" in section 403.519....

...She finds those cases to be relevant in that this Court's rationale focused on the types of entities enumerated in section 403.503, Florida Statutes, and "concluded that the common denominator present in each was an obligation to serve customers." Id. at 68. Thus, "the need to be examined under section 403.519, Florida Statutes, was a need resulting from the duty to serve those customers." Id. Commissioner Clark concludes her dissenting opinion by stating: Our task in this case was to decide what the law is, not what it ought to be. In my view, the law is clear that Duke New Smyrna is not a proper applicant under section 403.519, Florida Statutes, and the petition must be dismissed....

...ss analysis of a proposed plant." Order at 74. In this Court, Duke and New Smyrna, who are joint appellees with the PSC, argue that a need determination as part of the permitting process for the proposed Duke plant does fall within the parameters of section 403.519....

...anted by the Legislature. If there is a reasonable doubt as to the lawful existence of a particular power that is being exercised, the further exercise of the power should be arrested. 496 So.2d at 118. The precise question we consider here is: Does section 403.519, Florida Statutes, authorize the granting of a determination of need upon an application for a proposed power plant for which the owner and operator is not a Florida retail utility regulated by the PSC and for which only thirty megawa...

...wer plants on the environment. See § 403.502, Fla. Stat. (1989). That Act establishes a site certification process that requires the PSC to determine the need for any proposed power plants, including cogenerators, based on the criteria set forth in section 403.519, Florida Statutes (1989). Section 403.519 requires the PSC to make *434 specific findings for each electric generating facility proposed in Florida, as to (1) electric system reliability and integrity, (2) the need to provide adequate electricity at a reasonable cost; (3) whe...

...most cost-effective alternative available for supplying electricity; and (4) conservation measures reasonably available to mitigate the need for the plant. (Footnote omitted).... . . . . Only an "applicant" can request a determination of need under section 403.519....

...the business of generating, transmitting, or distributing electric energy. Sec. 403.503(13), Fla. Stat. (1991). The Commission determined that because non-utility generators are not included in this definition, Nassau is not a proper applicant under section 403.519....

...The Commission reasoned that a need determination proceeding is designed to examine the need resulting from an electric utility's duty to serve customers. Non-utility generators, such as Nassau, have no similar need because they are not required to serve customers. The Commission's interpretation of section 403.519 also comports with this Court's decision in Nassau Power Corp....

...Beard . In that decision, we rejected Nassau's argument that "the Siting Act does not require the PSC to determine need on a utility-specific basis." 601 So.2d at 1178 n. 9. Rather, we agreed with the Commission that the need to be determined under section 403.519 is "the need of the entity ultimately consuming the power," in this case FPL....

...ffective alternative available. See Ch. 80-65, § 5 at 217, Laws of Fla. The need determination provision at issue in this case was originally codified at section 366.86, Florida Statutes (1981), which was part of FEECA. The same provision is now at section 403.519 but continues to be listed within FEECA, even though it is codified immediately following the Siting Act. The term "utility" was expressly defined for purposes of FEECA, including section 403.519, as "any person or entity of whatever form which provides electricity or natural gas at retail to the public." Ch. 80-65, § 5 at 214, Laws of Fla. Section 366.82(1), Florida Statutes (1997), provides: "For the purposes of ss. 366.80-366.85 [FEECA], and 403.519, `utility' means any person or entity of whatever form which provides electricity or natural gas at retail to the public." In 1990, statutory revisions included an amendment that changed the term "utility" to "applicant" in the first sentence of section 403.519....

...to place the PSC's determination of need within the regulatory framework allowing Florida regulated utilities to propose new power plants to provide electrical service to their Florida customers at retail rates. This need determination, pursuant to section 403.519, contemplates the PSC's express consideration of the statutory factors based upon demonstrated specified needs of these Florida customers....

...o cover this evolution in the electric power industry. [17] The projected need of unspecified utilities throughout peninsular Florida is not among the authorized statutory criteria for determining whether to grant a determination of need pursuant to section 403.519, Florida Statutes....

...power-plant siting and need determination are areas that Congress has expressly left to the states. [18] Accordingly, we reverse the order of the PSC on the basis that the granting of the determination of need exceeds the PSC's authority pursuant to section 403.519, Florida Statutes (1997)....

...mstances presented here. Clearly, the Commission was created to regulate utilities seeking to operate in Florida. In my view that is precisely what the Commission is doing here. NOTES [1] §§ 403.501-403.518, Fla. Stat. (1997). [2] §§ 366.80-.85, 403.519, Fla....

...team generating plant of less than 75 megawatts in capacity or to any substation to be constructed as part of an associated transmission line unless the applicant has elected to apply for certification of such plant or substation under this act. [5] Section 403.519, Florida Statutes (1997), provides in relevant part: On request by an applicant or on its own motion, the commission shall begin a proceeding to determine the need for an electrical power plant subject to the Florida Electrical Power Plant Siting Act.......

...f the plant and adopting the order of the hearing officer. On January 13, 1982, Sierra filed its Notice of Administrative Appeal from this final order. [1] Sierra Club contends the certification of the plant was in error, due to the misconstruing of section 403.519, Florida Statutes (1981), by the hearing officer and the Board. That section provides as follows: 403.519....

...the environmental impact of the project, something it claims was not done here, since the hearing officer and the Board saw the determination of need as a matter strictly for the PSC (the Commission), whose determination would not be tampered with. Section 403.519 was not part of the initial FEPPSA, but was added in 1980, as part of the Florida Energy Efficiency and Conservation Act, sections 366.80 to 366.85, Florida Statutes (1981)....

...l gas usage. § 366.81. Additionally, in 1981, the legislature amended section 403.508, dealing with the certification hearing, to include the provision that "however, an affirmative determination of need by the Public Service Commission pursuant to section 403.519 shall be a condition precedent to the conduct of the certification hearing." These statutes show an intention on the part of the legislature that the PSC was to be the sole determiner of need and that need was not a proper topic for examination at the subsequent certification hearing....

...s facility and the environmental impact resulting from its construction and operation. Treated as "given" or already established as a matter of law is the consistency and compliance order of the Governor and Cabinet. No Florida court has interpreted section 403.519, but the language therein, as well as the language from section 403.508(3), compels the finding that the PSC is the sole judge as to the need for the power plant, with the hearing officer and, indeed, the Siting Board, bound by that determination....

...The Sierra Club had made a proffer of evidence from Dr. Barney Capehart, the gist of which was his contention that if OUC adopted a conservation program, it would not have to participate in building the proposed power plant. The OUC objected to this testimony under section 403.519, citing it as evidence of need, a matter proper only for the PSC to consider. The hearing officer disallowed the proffered testimony, stating that it dealt with matters properly before the PSC and thus was not proper for consideration in the certification hearing. Section 403.519 specifically provides for the PSC to "expressly consider the conservation measures taken" as part of the need determination. This is in line with section 366.81, Florida Statutes (1981), which was adopted along with section 403.519, providing for the PSC to be the appropriate agency in adopting plans related to the conservation of electrical energy and natural gas usage....

...ORFINGER, C.J., concurs. SHARP, J., dissents with opinion. SHARP, Judge, dissenting. Judge Cobb's opinion in this case is forceful, logical, and persuasive. Although I would like to agree with him, I think there is a contrary, equally logical interpretation of section 403.519, Florida Statutes (1981), which involves procedural due process [1] as advocated by the Sierra Club....

...[6] But thereafter, the two statutes differ materially concerning the effect of the PSC's need determination. The TLSA clearly provides that the commission's determination of need "shall be binding on all parties to any certification proceeding" [7] , but section 403.519 of the FEPPSA provides only that the PSC's need determination "shall create a presumption of public need and necessity and shall serve as the commission's report required by s. 403.507(1)(b)." Section 403.519 was an amendment to the FEPPSA which was passed at the same time as the TLSA....

...This makes the difference in language and treatment even more significant. The legislature knows how to make a presumption "conclusive" when it means a finding cannot be challenged. It did so under the TLSA and has done so in other statutes. [8] But it did not so provide in section 403.519 of the FEPPSA....

...110009-EI, Order No. PSC-11-0547FOF-EI, 2011 WL 5904236 , at *1 (F.P.S.C. Nov. 23, 2011) (“Final Order”). But the Legislature created an exception in 2006 to promote utility company investment in nuclear power plants. Specifically, the Legislature added section 403.519(4)(e), Florida Statutes (2006), to provide that [a]fter a petition for determination of need for a nuclear power plant has been granted, the right of a utility to recover any costs incurred prior to commercial operation, including, bu...

...construction of the nuclear or integrated gasification combined cycle power plant ... shall not constitute or be evidence of imprudence” and that “[ijmprudence shall not include any cost increases due to events beyond the utility’s control.” § 403.519(4)(e), Fla....

...e plant ... shall not be subject to challenge unless and only to the extent the commission finds, based on a preponderance of the evidence adduced at a hearing before the commission under s. 120.57, that certain costs were imprudently incurred. *753 § 403.519(4)(e), Fla....

...wer plants on the environment. See § 403.502, Fla. Stat. (1989). That Act establishes a site certification process that requires the PSC to determine the need for any proposed power plants, including cogenerators, based on the criteria set forth in section 403.519, Florida Statutes (1989). [5] Section 403.519 requires the PSC to make specific findings for each electric generating facility proposed in Florida, as to (1) electric system reliability and integrity; (2) the need to provide adequate electricity at a reasonable cost; (3) whether...

...The 1990 amendments, however, are not at issue in this appeal. [4] "Cogeneration" is an efficient and conservational method of producing electricity. See 16 U.S.C. § 796(18)(A) (1988). A cogenerator is an entity which produces electricity through cogeneration. [5] Section 403.519, Florida Statutes (1989), provides: On request by a utility or on its own motion, the commission [PSC] shall begin a proceeding to determine the need for an electrical power plant subject to the Florida Electrical Power Plant Siting Act....

...iction which it deems relevant. The commission's determination of need for an electrical power plant shall create a presumption of a public need and necessity and shall serve as the commission's report required by s. 403.507(1)(b). (Emphasis added.) Section 403.519 was originally enacted as part of the Energy Efficiency and Conservation Act, chapter 80-65, section 5, Laws of Florida, but is codified as part of the Siting Act....

...Nassau is not appealing that portion of Order No. 23792. [9] We reject Nassau's alternative argument that the Siting Act does not require the PSC to determine need on a utility-specific basis. In Order No. 22341, the Commission clearly adopted the position that the four criteria in section 403.519 are "utility and unit specific" and that need for the purposes of the Siting Act is the need of the entity ultimately consuming the power. We note that under section 403.519, the PSC is designated the "sole forum" for determination of need under the Siting Act....

...It is well established that the construction placed on a statute by the agency charged with the duty of executing and interpreting it is entitled to great weight. PW Ventures, Inc. v. Nichols, 533 So.2d 281, 283 (Fla. 1988). The PSC's interpretation is consistent with the overall directive of section 403.519 which requires, in particular, that the Commission determine the cost-effectiveness of a proposed power plant....

...Hines 2 plant, even accepting the most favorable assumptions regarding what generating resources FPC could hope to obtain when the Panda contract expired. On August 7, 2000, FPC filed its petition for determination of need with the PSC, pursuant to section 403.519, Florida Statutes (2000), seeking approval to build Hines 2....

..."Commission orders come to this Court `clothed with the statutory *52 presumption that they have been made within the [PSC's] jurisdiction and powers, and that they are reasonable and just and such as ought to have been made.'" Gulf Coast Elec. Coop., Inc. v. Johnson, 727 So.2d 259, 262 (Fla.1999). Section 403.519, Florida Statutes (2000), sets forth the criteria the PSC must consider in conducting its needs analysis. Section 403.519 provides, in pertinent part: In making its determination, the commission shall take into account the need for electric system reliability and integrity, the need for adequate electricity at a reasonable cost, and whether the proposed plant is the most cost-effective alternative available....

...ble electric services to ratepayers at a reasonable rate." [5] Furthermore, the PSC's order stated: We find that Florida Power Corporation has a need for additional capacity to maintain the reliability and integrity of its system, as contemplated by Section 403.519, Florida Statutes....

...20 percent minimum criterion. Thus, the addition of Hines 2 will contribute to the provision of adequate electricity to FPC's system. The PSC's grant of a determination of need for a proposed power plant creates a presumption of public need. See *53 § 403.519, Fla....

...apacity in 2003, the PSC has acted consistently with the applicable statutory criteria, its own rules, and a multitude of previous need determination decisions. [8] Panda contends, however, that this Court clarified this "need" standard set forth in section 403.519 in Tampa Electric by requiring the utility to demonstrate an actual present in-service need for all the electrical power to be generated at the proposed plant....

...Therefore, *54 contrary to Panda's assertion, the Court did not address, let alone change, the need determination standards pertinent to Florida retail utilities such as FPC. Consequently, we conclude that the PSC properly applied the criteria contained in section 403.519 in conducting its needs analysis in this case....

...e (IGCC) electric generating unit, to be located in Polk County. We have jurisdiction 1 and affirm the Public Service Commission’s order. Tampa Electric Company (TECO) filed a determination of need petition for a 220-megawatt IGCC unit pursuant to section 403.519, Florida Statutes (1991)....

...the IGCC project was the most cost effective of all of its plans and initiated the proceeding in question for determination of need for the project. In determining the need for the IGCC unit, the Commission considered the five factors delineated in section 403.519 of the Florida Statutes (1991)....

...ompetent, substantial evidence; 2) the Commission’s order should be remanded to correct material errors in procedure that affected the correctness of the Commission’s action and the fairness of the proceedings; and 3) the Commission misconstrued section 403.519. For the reasons expressed, we reject all of Floridians’ arguments. Section 403.519, Florida Statutes (1991), states: In making its determination, the commission shall take into account the need for electric system reliability and integrity, the need for adequate electricity at a reasonable cost, and whether the proposed plant is the most cost-effective alternative available....

...its jurisdiction which it deems relevant. The Commission’s order clearly discusses, in detail, each factor required by the statute. In its conclusion, the Commission stated: We believe that TECO’s petition satisfies the statutory requirements of section 403.519, Florida Statutes....

...It appears that further timely and cost effective conservation measures cannot reliably defer the need for the IGCC unit. (Emphasis added.) In reaching each of these conclusions, the Commission made detailed findings of fact relative to the criteria found in section 403.519. We find that the Commission’s findings and conclusions in regard to each of the statutory criteria in section 403.519 are clearly presented in the Commission’s order and are supported by competent, substantial evidence. 2 See Citizens of Florida v. Public Service Commission, 435 So.2d 784 (Fla.1983). We also disagree with Floridians’ assertion that the Commission misconstrued the terms “mitigate” and “cost-effective” in section 403.519....

...Bevington, and Kevin W. Cox of Holland & Knight, LLP, Tallahassee, for Appellees. KELLY, Judge. The appellants, customers of Duke Energy Florida, Inc., and Florida Power & Light Company (the Utilities), brought suit against the Utilities challenging the constitutionality of sections 366.93 and 403.519, Florida Statutes (2012), and seeking a refund of monies paid under the statutes. They appeal from the trial court's order dismissing the action with prejudice. We affirm. In 2006, the Legislature enacted section 366.93, Florida Statutes, and amended section 403.519, Florida Statutes,1 with the stated purpose of encouraging utility companies to invest in new nuclear power plants. See Ch. 2006-230, § 1, at The applicable version of section 403.519(4)(e), Florida Statutes (2012), 1 provides in pertinent part: After a petition for determination of need for a nuclear or integrated gasification combined cycle power plant has been...

...granted the Utilities' motion and dismissed the second amended complaint with prejudice. The second amended complaint contained two counts, only one of which is at issue in this appeal. In that count the appellants allege that sections 366.93 and 403.519 are facially unconstitutional under Article I, Section 10 of the Constitution of the United States....

...ower plants on the environment. See § 403.502, Fla.Stat. (1989). That Act establishes a site certification process that requires the PSC to determine the need for any proposed power plants, including cogenerators, based on the criteria set forth in section 403.519, Florida Statutes (1989). Section 403.519 requires the PSC to make specific findings for each electric generating facility proposed in Florida, as to (1) electric system reliability and integrity, (2) the need to provide adequate electricity at a reasonable cost; (3) whether...

...lectricity; and (4) conservation measures reasonably available to mitigate the need for the plant. (Footnote omitted). At issue here is whether a non-utility cogenerator, 3 such as Nassau, is *398 a proper applicant for a determination of need under section 403.519, Florida Statutes (1991)....

...4 The Commission denied Nassau’s motion to consolidate the proceedings on its petitions with the proceedings on the joint petition of FPL and Cypress. FPL moved to dismiss Nassau’s separate petition on the grounds that Nassau is not a proper applicant under section 403.519....

...The cross-appeals were dismissed on the Commission’s motion. Thus, the only order before us is the order dismissing Nassau’s petition to determine need. We have previously noted that because the PSC is the sole forum for determination of need under the Siting Act, its construction of section 403.519 is entitled to great weight and will not be overturned unless it is clearly unauthorized or erroneous. 601 So.2d at 1178 n. 9; PW Ventures, Inc. v. Nichols, 533 So.2d 281, 283 (Fla.1988). The Commission’s construction of the term “applicant” as used in section 403.519 is consistent with the plain language of the pertinent provisions of the Act and this Court’s 1992 decision in Nassau Power Corp. v. Beard. Only an “applicant” can request a determination of need under section 403.519....

...n, the business of generating, transmitting, or distributing electric energy. § 403.503(13), Fla.Stat. (1991). The Commission determined that because non-utility generators are not included in this definition, Nassau is not a proper applicant under section 403.519....

...The Commission reasoned that a need determination proceeding is designed to examine the need resulting from an electric utility’s duty to serve customers. Non-utility generators, such as Nassau, have no similar need because they are not required to serve customers. *399 The Commission’s interpretation of section 403.519 also comports with this Court’s decision in Nassau Power Corp....

...Beard. In that decision, we rejected Nassau’s argument that “the Siting Act does not require the PSC to determine need on a utility-specific basis.” 601 So.2d at 1178 n. 9. Rather, we agreed with the Commission that the need to be determined under section 403.519 is “the need of the entity ultimately consuming the power,” in this case FPL....

...This interpretation of the statutory scheme will satisfy the requirement that an applicant be an “electric utility,” while allowing non-utility generators with a contract with an electric utility to bring the contract before the Commission for approval. Because we cannot say that the Commission’s construction of section 403.519 is clearly unauthorized or erroneous, we affirm the order under review....

...A "qualifying facility” is a small power producer or cogenerator that meets the threshold efficiency standards set forth by the Federal Energy Regulatory Commission pursuant to PURPA. Nassau Power Corp., 601 So.2d at 1177 n. 7 (citing 18 C.F.R. § 292.201 -.211 (1991); Fla.Admin.Code Rule 25-17.080(3)). . Section 403.519, Florida Statutes (1991), provides in pertinent part: On request by an applicant or on its own motion, the commission shall begin a proceeding to determine the need for an electrical power plant subject to the Florida Electrical Power Plant Siting Act....

...BARKETT, C.J., and McDONALD, SHAW, GRIMES, KOGAN and HARDING, JJ., concur. NOTES [1] The language in section 403.9422 is similar to the language in other sections of the Florida Statutes under which the legislature has empowered the Commission to regulate certain industries. For example, the language in section 403.519, Florida Statutes (1993), governing the determination of need for electrical power plants, provides that the Commission shall be the sole forum for determining electrical power plant need.