AG Processing, Inc. v. KCP & L Greater Missouri Operations Co.

432 S.W.3d 226, 2014 WL 1202501, 2014 Mo. App. LEXIS 332
CourtMissouri Court of Appeals
DecidedMarch 25, 2014
DocketNo. WD 76353
StatusPublished
Cited by1 cases

This text of 432 S.W.3d 226 (AG Processing, Inc. v. KCP & L Greater Missouri Operations Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
AG Processing, Inc. v. KCP & L Greater Missouri Operations Co., 432 S.W.3d 226, 2014 WL 1202501, 2014 Mo. App. LEXIS 332 (Mo. Ct. App. 2014).

Opinion

LISA WHITE HARDWICK, J.

AG Processing, Inc. (“AGP”) appeals from the Missouri Public Service Commission’s (“Commission”) Order Regarding Remand in which it: (1) vacated a prior report and order finding that KCP & L Greater Missouri Operations Company (“KCP & L”) had imprudently operated its hedging program and, as a result, was required to pay AGP and other customers refunds; (2) ordered a temporary rate adjustment to return to KCP & L the amount of the refunds; and (8) ordered that a separate complaint case that AGP had initiated against KCP & L involving different allegations of imprudence be consolidated with the present complaint case. AGP contends the Order Regarding Remand is unlawful for several reasons. Because the Order Regarding Remand is not a terminal and complete resolution of the two complaint cases it concerns, it is not a final and appealable administrative order. Therefore, we dismiss AGP’s appeal.

Factual and Procedural History1

KCP & L is the successor company to Aquila, Inc., which provided industrial steam utility service from its Lake Road Generating Station in St. Joseph. The steam was produced primarily from a coal-fired boiler, but natural gas was also used as a fuel source. AGP was one of Aquila’s five industrial steam customers served by the Lake Road Generating Station.

Aquila initiated a ratemaking case before the Commission in 2005, seeking a rate increase for its steam service in St. Joseph. Pursuant to a negotiated settlement of the case, the Commission approved a stipulation that authorized Aquila to implement a quarterly cost adjustment (“QCA”) and a price hedging program for fuel costs. Gains and losses from the hedging program were passed through to customers through the use of the QCA.

In January 2010, AGP filed a complaint case (“2010 complaint case”) alleging that Aquila was imprudent for initiating such a hedging program and that the program was imprudently designed and imprudently operated because Aquila purchased substantially more gas than it actually burned, which resulted in Aquila’s steam customers being “excessively charged.” The 2010 complaint case was filed against KCP <& L as Aquila’s successor. AGP sought an order requiring KCP & L to refund the costs of the hedging program that were paid by Aquila’s five industrial steam customers.

After an evidentiary hearing, the Commission issued its report and order on September 28, 2011. In the report and order, the Commission found that it was not imprudent for Aquila to adopt a natural gas hedging program and that the hedging program was prudently designed. The Commission further found, however, that KCP & L had the burden of proving that Aquila operated the hedging program in a prudent manner and that it failed to meet that burden. As a result, the Commission concluded that the entire net cost of operating the natural gas price hedging program in 2006 and 2007 was imprudently incurred. Therefore, the Commission ordered that KCP & L refund the net cost of operating Aquila’s natural gas hedging program, in the amount of $931,968 for 2006 and $1,958,488 for 2007, to its five [228]*228industrial steam customers through the QCA.

KCP & L appealed the Commission’s September 28, 2011 report and order to this court. In AG Processing, Inc. v. KCP & L Greater Missouri Operations Co., 385 S.W.3d 511 (Mo.App.2012), we reversed the Commission’s decision, finding that the Commission erred by shifting the burden of proof to KCP & L and by ordering KCP & L to pay customer refunds because it failed to meet that burden. Id. at 516. We held that AGP, as the complainant who initiated the action, had the burden to prove its claims of imprudence regarding Aquila’s expenditures on the natural gas hedging program. Id. Accordingly, we reversed the Commission’s September 28, 2011 report and order and remanded the cause “for further consideration under the appropriate burden of proof.” Id. While awaiting the issuance of our mandate, KCP & L completed the refunds to Aquila’s steam customers pursuant to the Commission’s September 28, 2011 report and order.

On remand, the Commission requested that the parties re-brief the case on the existing record but properly apply the preponderance of the evidence standard. In its reply to KCP & L’s brief, AGP argued for the first time that, even if it failed to meet its burden of proof, Aquila’s customers could not be compelled to return the refunded money to KCP & L as a matter of law. The Commission gave KCP & L and Staff an opportunity to respond to this new legal argument.

Following the parties’ re-briefing, the Commission reviewed its September 28, 2011 report and order and issued its Order Regarding Remand on February 27, 2013. In its Order Regarding Remand, the Commission determined that it would vacate the September 28, 2011 report and order in its entirety as a matter of due process. The Commission explained that, when AGP initially presented its case, it was operating under the assumption that the burden of proof would shift to KCP & L if AGP raised “serious doubt” as to KCP & L’s adoption and management of the hedging program. Because this court determined in AG Processing, 385 S.W.3d 511, that the burden does not shift to KCP & L but remains with AGP, the Commission decided that, to ensure due process, it would reopen the record to take additional evidence now that all of the parties were fully informed as to the proper burden of proof and who bears that burden.

Additionally, the Commission found that it erred in the September 28, 2011 report and order when it ordered the refunds to Aquila’s customers because there was insufficient evidence as to how much net hedging costs Aquila would have incurred if it had properly forecasted the amount of natural gas it needed to purchase. Because there was no evidence from which to determine the correct amount of costs to be passed through to each of the customers, there was no evidence to determine the correct amount of the refunds. Consequently, the Commission found that it needed to make a temporary rate adjustment under Section 386.520.2(3).2 The Commission relied upon Section 386.520.2(3)’s provision that, if an unlawful or unreasonable decision of the Commission results in a decrease in the public utility’s rates and charges in a greater amount than what would have occurred had the Commission not erred, the Commission shall be instructed on remand to [229]*229approve temporary rate adjustments designed to allow the utility to recover from its customers the amounts it should have collected plus interest.

Section 386.520.2(3) requires that such temporary rate adjustments be made no more than 120 days from the issuance of the court of appeals’ mandate. The Commission determined, however, that it did not have sufficient time to conduct a new hearing and render a decision before the expiration of the 120 days. Therefore, the Commission decided to order a temporary rate adjustment during the pendency of the new hearing.

The Commission believed that this temporary rate adjustment would not prejudice any party because the QCA is a two-way cost adjustment mechanism.

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432 S.W.3d 226, 2014 WL 1202501, 2014 Mo. App. LEXIS 332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ag-processing-inc-v-kcp-l-greater-missouri-operations-co-moctapp-2014.