AmeriSteel Corp. v. Clark, 88427

• Decision Date: 10 April 1997
• Docket Number: No. 88427,88427
• Citation: 691 So.2d 473
• Court: Florida Supreme Court
• Parties: Util. L. Rep. P 26,596, 22 Fla. L. Weekly S178 AMERISTEEL CORPORATION, f/k/a Florida Steel Corporation Appellant, v. Susan F. CLARK, et al., Appellees.

Page 473

691 So.2d 473

Util. L. Rep. P 26,596, 22 Fla. L. Weekly S178

AMERISTEEL CORPORATION, f/k/a Florida Steel Corporation Appellant, v. Susan F. CLARK, et al., Appellees.

No. 88427.

Supreme Court of Florida.

April 10, 1997.

Richard J. Salem and Marian B. Rush of Salem, Saxon & Nielsen, P.A., Tampa; and Peter J.P. Brickfield and James W. Brew of Brickfield, Burchette & Ritts, P.C., Washington, D.C., for Appellant.

Robert D. Vandiver, General Counsel and David E. Smith, Director of Appeals, Florida Public Service Commission, Tallahassee, Kenneth A. Hoffman and William B. Willingham of Rutledge, Ecenia, Underwood, Purnell & Hoffman, P.A., Tallahassee and Bruce Page, Office of General Counsel, Jacksonville, on behalf of Jacksonville Electric Authority; and Mark K. Logan of Bryant, Miller & Olive, Tallahassee and Edward Tancer, North Palm Beach, on behalf of Florida Power & Light Company, for Appellees.

PER CURIAM.

This case is before this Court on direct appeal brought by AmeriSteel Corporation (AmeriSteel), formerly known as Florida Steel Corporation, to review Order No. PSC-96-0755-FOF-EU of the Public Service Commission (the Commission). We have jurisdiction under article V, section 3(b)(2), of the Florida Constitution.

FACTS

The record reflects that on March 19, 1963, Jacksonville Electric Authority (JEA) and Florida Power & Light Company (FPL) entered into a territorial agreement which established a boundary line allocating exclusive service territory between JEA and FPL in Duval, Clay, Nassau and St. Johns Counties.

Subsequently, in 1974, AmeriSteel established its plant in Duval County. Although within the City of Jacksonville's municipal limits, AmeriSteel chose to locate its plant in FPL's exclusive service territory as defined under the 1963 agreement. In 1979, JEA and FPL entered into a second territorial agreement pursuant to which the utilities agreed to reaffirm and maintain the existing territorial boundaries initially established in the 1963 agreement.

From time to time over the thirty years since the 1963 agreement, JEA has permitted FPL to serve a relatively limited number of customers located in JEA's territory, and FPL has similarly permitted JEA to provide service to a smaller number of customers located in FPL's territory. Such interim service arrangements typically were made where one utility's distribution lines were closer to the customer and the utility in whose territory the customer was located would have had to cross or duplicate lines in order to provide service in its territory.

The genesis of AmeriSteel's complaints at issue in this case stems from a petition filed by JEA against FPL on March 20, 1995, to resolve a territorial dispute concerning service to customers in St. Johns County. That dispute was ultimately resolved in October 1995, when JEA and FPL filed with the Commission a joint motion to approve a new, broad-based territorial agreement embodying the realignment of service areas which AmeriSteel protests here. Without changing the boundary lines between the utilities, the new territorial agreement between JEA and FPL provides for the transfer of all customers currently served by one utility in the other utility's territory so that all customers located in the territory of each utility will be served by that utility. Specifically, the agreement resolves the interim service issue raised in JEA's petition by requiring the transfer of 390 FPL customers in St. Johns County (located in JEA's territory under the 1963, 1979 and current agreements) to JEA. The agreement also requires the transfer of fifty-seven FPL customers in Duval County (all located in JEA's territory under the three agreements) to JEA and the transfer of sixteen JEA customers (located in FPL's prior and current territory) to FPL. Finally, the agreement requires the relocation and construction of facilities which will enhance the system reliability of each utility and eliminate the existing uneconomic duplication of facilities. Because this new agreement between JEA and FPL once again reaffirms the boundaries between the utilities established in 1963, it in no way affects AmeriSteel but merely preserves the status quo that AmeriSteel will continue to be served by FPL, just as it always has been.

On November 8, 1995, the Commission staff filed its recommendation to approve the territorial agreement which was scheduled for consideration by the Commission on November 21, 1995. On that date, AmeriSteel appeared before the Commission and requested that the Commission defer consideration of the JEA-FPL proposed territorial agreement. AmeriSteel's request was granted. On December 4, 1995, AmeriSteel filed a motion to intervene, claiming a substantial corporate interest that would be directly affected by Commission approval of the agreement. As its basis for intervention, AmeriSteel alleged that, unlike the relatively low rates AmeriSteel enjoyed when it built its facility in FPL's service territory in 1974, FPL has become "a very high cost utility." AmeriSteel maintained in its motion that FPL's expensive rates are one factor threatening the long-term viability of its Jacksonville facility, and the possible closure of the Jacksonville facility would cause a loss of jobs and hurt the local economy. The Commission granted AmeriSteel's second request for deferral the following day, December 5, 1995.

On February 5, 1996, the Commission denied AmeriSteel's formal motion for intervention, concluding that AmeriSteel lacked legal standing to intervene as a party for the purpose of challenging the proposed territorial agreement. However, the Commission's order denying intervention expressly apprised AmeriSteel of its opportunity to participate and comment on the proposed territorial agreement at the February 6, 1996, agenda conference pursuant to section 366.04(4), Florida Statutes (1995), and Rules 25-6.0442(1) and 25-22.0021(1) of the Florida Administrative Code.

At that conference, the Commission heard comments from the Commission staff, JEA, FPL, AmeriSteel and other interested persons, and subsequently voted to approve the proposed territorial agreement. The Commission issued its proposed agency action ("PAA") approving the territorial agreement on February 14, 1996. AmeriSteel filed a petition protesting the Commission's preliminary approval of the new agreement. Oral argument on AmeriSteel's petition was held before the Commission on May 21, 1996. On June 10, 1996, the Commission dismissed AmeriSteel's petition, reiterating that AmeriSteel lacked standing to challenge the JEA-FPL territorial agreement. AmeriSteel now appeals the Commission's final order dismissing its petition and approving the territorial agreement.

LAW AND ANALYSIS

Standing

We begin with the well-settled rules that Commission orders come to this Court "clothed with the statutory presumption that they have been made within the Commission's jurisdiction and powers, and that they are reasonable and just and such as ought to have been made." United Tel. Co. v. Public Serv. Comm'n, 496 So.2d 116, 118 (Fla.1986) (quoting General Tel. Co. v. Carter, 115 So.2d 554, 556 (Fla.1959)); see also City of Tallahassee v. Mann, 411 So.2d 162, 164 (Fla.1981). Moreover, an agency's interpretation of a statute it is charged with enforcing is entitled to great deference. The party challenging an order of the Commission bears the burden of overcoming those presumptions by showing a departure from the essential requirements of law. Mann, 411 So.2d at 164; Shevin v. Yarborough, 274 So.2d 505, 508 (Fla.1973). We will approve the Commission's findings and conclusions if they are based on competent substantial evidence, Fort Pierce Utils. Auth. v. Beard, 626 So.2d 1356, 1357 (Fla.1993), and if they are not clearly erroneous. PW Ventures, Inc. v. Nichols, 533 So.2d 281, 283 (Fla.1988).

In the order at issue here, the Commission denied AmeriSteel formal standing to intervene as a party in proceedings before the Commission to approve the JEA-FPL proposed territorial agreement, finding that AmeriSteel failed to meet the two-pronged test for standing under Agrico Chemical Co. v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981). AmeriSteel contends that the Commission abused its discretion in denying the corporation standing to intervene as a party because, as a resident consumer of electricity in the City of Jacksonville, AmeriSteel is entitled to seek service from JEA--the municipal utility--where it is economical and practical for JEA to provide it, and to challenge JEA's delegation of its duty to provide service to municipal consumers to another utility. AmeriSteel maintains that because of the significant price differential between JEA and FPL for electrical service, the corporation has a substantial interest in the outcome of the proceeding as it affects AmeriSteel's ability to obtain service from JEA and the continued viability of its Jacksonville plant. Finally, AmeriSteel maintains that the Commission erred in denying it standing to intervene because the Commission's proceedings to approve the JEA-JPL territorial agreement provide the exclusive forum for resident electricity customers, like AmeriSteel, to compel service from the municipal electric system--JEA.

Only persons whose substantial interests may or will be affected by the Commission's action may file a petition for a 120.57 hearing. See § 120.57, Florida Statutes (1995); Fla. Admin. Code R. 25-22.029. To demonstrate standing to intervene under Agrico, a petitioner must demonstrate:

1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of a type or nature which the proceeding is designed to protect.

406 So.2d at 482. As the district court explained in that case, the first aspect of the test deals with the degree of injury. The second deals with the nature of the...