                 MISSOURI COURT OF APPEALS
                     WESTERN DISTRICT

IN THE M ATTER OF THE              )
A PPLICATION OF L ACLEDE G AS      )   WD82200 and
C OMPANY TO CHANGE ITS             )   WD82297
INFRASTRUCTURE SYSTEM              )
REPLACEMENT SURCHARGE IN ITS       )   O PINION FILED :
M ISSOURI G AS E NERGY S ERVICE    )
T ERRITORY ; IN THE MATTER OF      )   November 19, 2019
THE APPLICATION OF L ECLEDE        )
G AS C OMPANY TO CHANGE ITS        )
INFRASTRUCTURE SYSTEM              )
REPLACEMENT SURCHARGE IN ITS       )
L ACLEDE G AS S ERVICE             )
T ERRITORY ; THE O FFICE OF        )
PUBLIC C OUNSEL ;                  )
                                   )
                   Appellant,      )
                                   )
S PIRE MISSOURI , INC .,           )
                                   )
                   Appellant,      )
   v.                              )
                                   )
T HE MISSOURI P UBLIC S ERVICE     )
C OMMISSION ,                      )
                                   )
                   Respondent.     )


        APPEAL FROM THE PUBLIC SERVICE COMMISSION

        Before Division Two: Thomas H. Newton, Presiding Judge,
         Anthony Rex Gabbert, and Thomas N. Chapman, Judges
        The Office of Public Counsel (OPC) 1 and Spire Missouri, Inc., a gas

corporation       and    public      utility,   appeal      a   Public      Service      Commission 2

determination that it lacked the authority to require that Spire refund, or return

to, ratepayers excess infrastructure surcharges 3 related to the company’s 2017

neighborhood-replacement program after this Court found the same surcharges

ineligible as to the company’s 2016 infrastructure surcharges, reversing as

unlawful a Commission ruling to the contrary. In re Laclede Gas Co. v. Office

of Pub. Counsel, 539 S.W.3d 835 (Mo. App. W.D. 2017). 4 Having found the

OPC’s request for a ratepayer refund under a 2017 stipulation and agreement

moot, the Commission also seeks to dismiss the appeal as moot, arguing that the

company’s 2017 general rate cases, which are currently pending before the

Missouri Supreme Court, reset Spire’s 2017 surcharges to zero and thus the



1
  The Office of Public Counsel (OPC) is the Missouri state agency responsible for representing
consumers in cases before the Public Service Commission and on appeals of Commission orders. In
re Kansas City Power & Light Co. v. Midwest Energy Consumers' Grp ., 425 S.W.3d 142, 144 n.2 (Mo.
App. W.D. 2014) (citing sections 386.700 and 386.710).
2
 The Public Service Commission regulates public utilities, such as gas companies, in Missouri under
Chapters 386 and 393 of the Missouri Revised Statutes. In re Kansas City Power & Light Co., 425
S.W.3d at 143 n.1.
3
  The “infrastructure system replacement surcharge” is commonly referred to as an ISRS. See, e.g., §
393.1015, RSMo (2016). We will refer to it as an infrastructure surcharge to avoid the overuse of
acronyms and any resulting confusion. We also refer to the gas company, variously known during the
relevant time period as Laclede Gas Co., Missouri Gas Energy, and subsequently Spire Missouri, Inc.,
as Spire for the reader’s convenience.
4
 Spire has an eastern and a western territory in Missouri, and, when Spire has sought a surcharge or a
new general base rate, it has done so by bringing two cases, one for each territory. This appeal involves
two surcharge cases filed for the company’s infrastructure projec ts in each of its territories in 2017 and
analyzes their relation to two general rate cases filed in 2017 —that took effect in 2018—for each of
Spire’s territories. No other general rate cases are at issue or discussed. The related appeals argued
with this appeal similarly involve two infrastructure -surcharge cases from 2016 (WD82199, WD82299)
and two infrastructure-surcharge cases from 2018 (WD82302, WD82373).

                                                    2
excess surcharges are no longer eligible for recovery. We overrule the motion

and have considered the matter on the merits. We reverse and remand for further

proceedings.

       The Commission issued three separate orders following a consolidated

hearing in August 2018 intended to allow the parties to introduce evidence on

the methodology the Commission would use to determine how to place a value

on those components of the neighborhood infrastructure Spire replaced—plastic

mains and service lines—and which this Court determined were ineligible for

recovery as infrastructure surcharges because the components were not worn out

or deteriorated and no obligation had been placed on Spire to replace them by a

government-mandated safety requirement. Id. at 840. 5 The consolidated hearing

pertained to Spire’s infrastructure surcharges for projects in 2016, 2017, and

2018, each of which arises in different proceedings that are procedurally

distinguishable. This appeal focuses on the 2017 cases.

       When Spire sought surcharges for its 2017 infrastructure projects, the 2016

surcharge cases were pending before this Court. The OPC opposed some of the

2017 project costs for the same reason that it had opposed costs in the 2016 cases.

The parties entered a stipulation and agreement as to the 2017 cases believing



5
  Note that section 393.1012.1 permits a gas corporation to petition the Commission to increase its
infrastructure surcharge to recover the costs of “certain government -mandated infrastructure
replacement projects outside a general ratemaking case.” In re Laclede Gas Co. v. Office of Pub.
Counsel, 539 S.W.3d 835, 838 (Mo. App. W.D. 2017) (citation omitted). The infrastructure-surcharge
mechanism is more streamlined than a public utility’s general rate proceeding and is of more limited
duration. Compare sections 393.1015.2 and .5(2) with section 393.270.

                                                 3
that a court ruling on the matter would be dispositive and that it would not be a

productive use of the Commission’s or the parties’ resources “to litigate the

Plastics Issue before the Commission again.” 6 Under the agreement, which the

Commission approved in April 2017, if this Court reversed the Commission ’s

ruling on infrastructure cost-recovery eligibility as unlawful or unreasonable,

“then the court’s final decision shall be applied to the [2017 cases] in the same

manner as it is applied to the [2016 cases], as applicable.” Spire and Commission

staff agreed not to challenge the OPC’s right to request that the Commission

determine the amount of the infrastructure-surcharge refund for the 2017 projects

under the Court’s ruling, but all signatories agreed “to make any argument they

wish regarding the methodology, propriety, and quantification of such refund, if

any.” 7 After the Missouri Supreme Court denied transfer in March 2018 and our

mandate issued in the 2016 cases, the Commission asked the parties to file

recommendations about moving forward with the 2016 cases; the OPC addressed

both the 2016 and 2017 cases in a single recommendation given the stipulation




6
  During oral argument, the Commission contended that OPC should not have entered a stipulation as
to the 2017 infrastructure surcharges that Spire sought, but instead should have allowed the surcharges
to be imposed and then litigated the matter to get its challenge properly before this Court. We would
not encourage parties to avoid reaching agreements that have the potential to conserve agency and
judicial resources.
7
 The Commission subsequently approved tariffs for the 2017 infrastructure surcharges of $3,000,749
and $3,044.481 for Spire’s separate territories on Staff’s recommendation in May 2017. According to
Staff, the recommended tariffs complied with the unanimous stipulation and agreement of the parties
and thus included the costs for replaced plastic mains and service lines later fo und ineligible by this
Court with respect to the 2016 cases and due to be refunded under the parties’ agreement in the 2017
cases.


                                                   4
and agreement that related the 2017 cases to the outcome of the court appeal in

the 2016 cases.

       Because Spire’s 2017 general rate cases were not finalized until

compliance tariffs were approved on April 4, 2018, the OPC requested in a March

2018 pleading titled “Public Counsel’s Recommendation” that the Commission

determine which infrastructure surcharges from Spire’s 2016 and 2017 cases

were ineligible for recovery and suggested that the Commission apply any over-

collection to the rate base set in the 2017 general rate cases. 8 The OPC calculated

those excess surcharges in the total amount of $4.9 million. Spire opposed the

OPC’s recommendation on procedural and evidentiary grounds. Commission

Staff recommended that costs associated with the ineligible infrastructure

surcharges be refunded to Spire’s ratepayers in the company’s 2018

infrastructure-surcharge cases.             Staff calculated the excess surcharges at

$3,634,344.

       The record does not show whether the refunds that OPC requested for the

2017 infrastructure surcharges were accounted for or incorporated in the 2017

general rate cases. We assume that the refunds were not accounted for because,


8
  As to the 2017 general rate cases, appealed by Spire, the Southern District affirmed the Commission
order, and the Missouri Supreme Court granted Spire’s motion to transfer on September 3, 2019, at No.
SC97834. Spire Mo., Inc. v. Pub. Serv. Comm’n, No. SD35485 (Mo. App. S.D. Mar. 15, 2019). It
does not appear that any infrastructure -surcharge issues are part of the matters challenged in this
appeal. As noted above, because Spire serves customers in the eastern and western parts of Missouri
at different rates, its rate cases came before the Commission as two separate matters, but were
consolidated on appeal. Id. slip op. at 3. The OPC later argued in the proceedings leading to the case
currently before this Court that the 2017 surcharge refunds c ould be provided through a line item on
customers’ bills or through a separate and independent temporary rate adjustment under section
386.520.2(2).

                                                  5
as indicated above, after Spire’s 2017 general base rates went into effect, the

Commission ordered an August 2018 evidentiary hearing on the appropriate

methodology for valuing the ineligible surcharges as to the 2016, 2017, and 2018

infrastructure-surcharge cases and thus would have had no basis to account for

the ineligible surcharges in the 2017 general rate cases until after the hearing

took place. The Commission then issued an “Order Denying Request to Modify

Commission Order” on September 20, 2018, as to the 2017 surcharge cases at

issue in this appeal.      In that order, the Commission deemed the OPC’s

pleading—the “Recommendation”—a request to modify the 2017 final

Commission order, which had approved the stipulation and agreement, and

determined that it lacked the legal authority to order refunds of ineligible

infrastructure-surcharge costs in the 2017 cases, citing statutes that it claimed do

not allow the retroactive correction of superseded infrastructure-surcharge tariffs

after a general rate case includes those infrastructure costs in the base rates. The

Commission concluded that the “OPC’s request to modify the final order

approving the stipulation and agreement is moot and will be denied.” The OPC

filed an application for rehearing, which the Commission denied, and timely filed

this appeal. Spire also filed an application for rehearing, which the Commission

denied, and timely filed an appeal to argue that the Commission erred to the

extent, if any, that it determined that any of the costs in the company ’s 2017

infrastructure-surcharge cases were ineligible for recovery due to the

Commission’s failure to issue findings of fact and conclusions of law to support

                                         6
that determination.   We consolidated the appeals of the 2017 infrastructure-

surcharge cases.

MOOTNESS

      We have taken with the case the Commission’s motion to dismiss for

mootness and the motion to strike the OPC’s brief for failure to comply with

Rule 84.04. Spire has joined the Commission’s motion to dismiss but only with

the understanding that the Commission’s disposition of the 2016 infrastructure-

surcharge cases does not apply to the Commission order denying for mootness

the OPC’s request for refund in the 2017 infrastructure-surcharge cases. The

company suggests that its right to challenge the Commission’s decisions

regarding ineligible infrastructure-surcharge costs in the 2016 cases will not be

waived by a dismissal of the consolidated appeal here as the Commission did not

rule on the merits of the infrastructure-surcharge costs in the 2017 cases and

made no finding on the eligibility or amount of those costs, which would have to

be determined on remand, if that occurs. We address the Commission’s mootness

argument first.

      According to the Commission, under In re Missouri-American Water Co.

v. Office of Public Counsel, 516 S.W.3d 823 (Mo. banc 2017), once it granted

Spire general base rate increases for 2017, it lost the authority to order a

correction to the superseded 2017 infrastructure surcharges, which were required

by statute to be reset to zero. Id. at 828 (citing section 393.1006.6(1) and stating,



                                         7
“superseded tariffs cannot be corrected retroactively.”). 9 In that case, the OPC

had challenged the Commission’s authority to grant a petition for infrastructure

surcharges, and the matter was pending on appeal when the water company filed

a separate rate case. Id. at 826-27. Commission Staff and the water company

“reached a stipulation and agreement establishing a new base rate that

incorporated the costs of the [water company’s] projects for all then-existing

surcharges, including the surcharge at issue in this case.” Id. at 827. Because

the surcharge was reset to zero “once the new base rates went into effect[,] . . .

the surcharges that were the subject of the underlying interim rate case were no

longer in effect by the time the appellate court issued its opinion.” Id. According

to our supreme court, the legal question underlying the infrastructure surcharges

was therefore moot and did not fit within the public-interest exception to the

mootness doctrine. Id. at 828-29.




9
  The equivalent statutory subsection applicable to gas utilities is found in section 393.1015, which
states the following:

       A gas corporation that has implemented an ISRS [infrastructure system replacement
       surcharge] pursuant to the provisions of sections 393.1009 to 303.1015 shall file
       revised rate schedules to reset the ISRS to zero when new base rates and c harges
       become effective for the gas corporation following a commission order establishing
       customer rates in a general rate proceeding that incorporates in the utility’s base rates
       subject to subsections 8 and 9 of this section eligible costs previously ref lected in an
       ISRS.

§ 393.1015.6(1). Because the Missouri Supreme Court cited this Court’s decision in State ex rel.
Praxair, Inc. v. Public Service Commission, 328 S.W.3d 329 (Mo. App. W.D. 2010), the legal principle
is better stated as “superseded tariffs are generally considered moot and therefore not subject to
consideration because superseded tariffs cannot be corrected retroactively.” Id. at 334 (emphasis
added) (citations omitted).

                                                  8
        We do not find the water company case applicable to the matter at hand.

Here, when our decision finding the costs to replace plastic mains and service

lines ineligible for recovery in the 2016 infrastructure-surcharge cases became

final, Spire’s 2017 general base rates had not yet gone into effect. The Missouri

Supreme Court denied transfer in the 2016 infrastructure-surcharge cases on

March 6, 2018; our mandate issued on March 7, 2018, and the parties knew as

early as November 21, 2017, when we issued the opinion, that the costs for

plastic mains and service lines had been ruled ineligible for recovery as

infrastructure surcharges. The Commission approved Spire’s 2017 general rate

cases on March 7, 2018, with an effective date of March 17, 2018, and

compliance tariffs for those rate cases were approved April 4, 2018. Under

section 393.1015.6(1), an infrastructure surcharge incorporated into a general

rate case is reset to zero when the new base rates “become effective.” Because

the rates in the 2017 general rate cases did not go into effect until March 17,

2018, at the earliest, the 2016 and 2017 infrastructure surcharges had not been

reset to zero when our eligible-costs decision and order for proceedings

consistent with our opinion became final. 10 Further, the parties had signed a

stipulation and agreement, approved by the Commission, that the final

determination as to the appeal of the 2016 cases would be applied to the 2017



10
  The Commission’s September 20, 2018, report and order on remand i n the 2016 infrastructure-
surcharge cases, states, in fact, that Spire’s 2017 general rates became effective on April 19, 2018, or
more than one month after our mandate issued in In re Laclede Gas Co., and the existing infrastructure
surcharges were then reset to zero.

                                                   9
infrastructure-surcharge cases, subject only to a calculation of the refunds o wed

to Spire’s ratepayers. While it may not be possible at this late date under the law

to “correct” the 2017 infrastructure surcharges, which have now been reset to

zero, excess charges may flow through and be returned to ratepayers by means

of temporary rate adjustments. § 386.520.2. The matter is not moot.

      The Commission also argues that we should grant its motion to dismiss

because the OPC and Spire “seek relief that is unauthorized under the exclusive

and jurisdictional procedures of Sections 386.500 and 386.510.” In its view, the

OPC should have appealed the Commission order approving the stipulation and

agreement to which OPC was a party because the Commission approved the 2017

infrastructure surcharge, including the costs of replaced plastic, in that order and

it has deemed the OPC’s “Recommendation” following our ruling in the 2016

infrastructure-surcharge cases as a request to modify that order. The Commission

also contends that it cannot reach back and modify the order approving the

stipulation to establish a 2017 infrastructure surcharge for an amount other than

what was approved in that order, i.e., an amount that included the cost to replace

plastic mains and service lines. Essentially, the Commission asks this Court to

overlook our ruling that the Commission’s approval of Spire’s recovery of costs

for the replacement of plastic components in 2016 was not permitted under the

infrastructure-surcharge statute and that the Commission approved a stipulation

under which the parties agreed that ratepayers could be refunded, or recover

excess charges, in the 2017 cases if the courts finally ruled these costs ineligible

                                        10
in the 2016 cases. We do not believe that the law allows the Commission to

move forward, particularly under the circumstances of this case, as if we had not

spoken to the issue before the new base rates went into effect. We feel compelled

to observe, as well, that the law does not contemplate the incorporation of

ineligible costs previously reflected in an infrastructure surcharge into a utility

company’s base rates. § 393.1015.6(1) (pertaining to the incorporation in new

base rates of “eligible costs previously reflected in an [infrastructure surcharge]”

(emphasis added)). We overrule the motion to dismiss.

      As to the Commission’s contention that the OPC’s point is multifarious,

even if we were to agree, we may still, in the exercise of our discretion, “attempt

to resolve the issue on the merits.” LaBarca v. LaBarca, 534 S.W.3d 329, 335

n.4 (Mo. App. W.D. 2017) (citation omitted); see also State ex re. Mo. Office of

Pub. Counsel v. Pub. Serv. Comm'n, 293 S.W.3d 63, 70 (Mo. App. S.D. 2009)

(declining to dismiss appeal for briefing deficiencies, court references the

“substantial business and private interests and investments” at stake in a case of

this nature). Accordingly, we will not strike the OPC’s brief.

2017 INFRASTRUCTURE-SURCHARGE REFUNDS

      After the Commission issued the September 20, 2018, order, which it

unilaterally denominated a denial of a request to modify its April 2017 order, the

OPC sought a rehearing under section 386.500 and, when that request was

denied, filed an appeal under section 386.510. Accordingly, the Commission’s

order finding moot OPC’s recommended disposition following our remand in

                                        11
Laclede and the stipulation the Commission approved, is properly before this

Court. In the sole point relied on, the OPC argues that the Commission erred by

declining to enforce its April 2017 order “because the enforcement of that prior

order does not require separate statutory authority to independently issue refunds

as suggested by the Commission and would not result in a remedy that is moot. ”

According to the OPC, the Commission’s order required Spire to adhere to its

agreement that a court ruling in the 2016 infrastructure-surcharge cases would

be applied to the 2017 cases; by remanding the Commission’s decision in the

2016 cases for further proceedings consistent with our opinion, this Court

implicitly instructed the Commission to comply with section 386.520.2;

determination of the amount of the required refunds would not challenge the

validity of Spire’s infrastructure surcharges or its ability to use the surcharge

statute; and the refunds would only affect money that Spire collected before its

rates were reset in the 2017 general rate cases.

      The Commission determined that it lacked statutory authority to correct

the 2017 infrastructure surcharges under section 393.1015.6(1), and In re

Missouri-American Water Co. Because this raises an issue of law, we must

determine whether the Commission’s order is lawful.            State ex rel. AG

Processing, Inc. v. Pub. Serv. Comm'n, 120 S.W.3d 732, 734 (Mo. banc 2003).

“The lawfulness of a [Commission] order is determined by whether statutory

authority for its issuance exists, and all legal issues are reviewed de novo.” Id.



                                        12
        In our view, the principal error the Commission made was in deeming the

OPC’s Recommendation following our remand of the 2016 infrastructure-

surcharge cases a request to modify the Commission’s April 2017 order, which

approved the OPC/Spire stipulation and agreement to apply the Court’s ruling in

In re Laclede Gas Co. to the 2017 infrastructure surcharges. The OPC made the

Recommendation at the Commission’s request after we remanded in In re

Laclede Gas Co. and under a stipulation that allowed the OPC to seek refunds

for ratepayers of ineligible surcharges that the Commission included in the

infrastructure surcharges imposed under the April 2017 order. No modification

of the Commission’s 2017 order was called for; rather, the OPC, in its

Recommendation, sought a “resolution of the outstanding issues related to the

plastic portion of the main and service lines which were approved for [the 2017

infrastructure-surcharge cases].”               This would require that the Commission

enforce the stipulation and agreement that was still in force, the Commission

approved, and allowed a refund, or return of excess surcharges to ratepayers. 11

Thus, the Commission erred in deeming the OPC’s Recommendation a request

to modify the 2017 order.




11
   The Commission states in the September 20, 2018, order that the signatories to the stipulation and
agreement “did not agree on a specific mechanism to effectuate such refunds. Even if they had so
agreed, however, the Commission cannot orde r a refund of [infrastructure-surcharge] costs without
statutory authority.” If the Commission is correct, then it lacked the authority to approve the stipulation
and agreement and, under section 386.490.2, its April 2017 order is a nullity. That issue i s not,
however, before this Court.

                                                    13
        Also, as indicated above, nothing in In re Missouri-American Water Co.,

precludes the Commission in this case from ordering adjustments for ratepayers

who have paid in excess of what Spire “would have received had the commission

not erred.” § 386.520.2(2). We decided that Spire’s costs for replacing plastic

mains and services lines were ineligible for recovery as infrastructure surcharges

before the 2017 general base rates went into effect and before the 2017

infrastructure surcharges were reset to zero. As well, Spire agreed to issue

refunds to ratepayers in this case, therefore obviating the need for the

Commission to do anything more than enforce the stipulation and determine the

appropriate amount of the refund/adjustment as requested by the OPC.                                 We

recognize that the surcharges have now been reset to zero, but this does not mean

that the Commission lacks any authority to order Spire to adjust for excess

surcharges or that ratepayers cannot recover refunds by means of temporary rate

adjustments or prospective rate adjustments for excess surcharges.

        Section 386.520 authorizes the Commission to make “temporary rate

adjustments” or “prospective rate adjustments” after a final judicial decision

“determines that a commission order or decision unlawfully or unreasonably

decided an issue or issues in a manner affecting rates.” § 386.520.2. 12 In this

regard, the statute states the following:



12
  Under section 393.1012, a gas corporation may seek the establishment of infrastructure surcharges
“that will allow for the adjustment of the gas corporation’s rates and charges to provide for the recovery
of costs for eligible infrastructure system replacements.” § 393.1012.1. Accordingly, an infrastructure
surcharge comes within the ambit of an issue “affecting rates.”

                                                   14
2. With respect to orders or decisions issued on and after July 1,
2011, that involve the establishment of new rates or charges for
public utilities that are not classified as price-cap or competitive
companies, there shall be no stay or suspension of the commission’s
order or decision, however:

      (1) In the event a final and unappealable judicial decision
         determines that a commission order or decision unlawfully
         or unreasonably decided an issue or issues in a manner
         affecting rates, then the court shall instruct the commission
         to provide temporary rate adjustments and, if new rates and
         charges have not been approved by the commission before
         the judicial decision becomes final and unappealable,
         prospective rate adjustments. Such adjustments shall be
         calculated based on the record evidence in the proceeding
         under review and the information contained in the
         reconciliation and billing determinants provided by the
         commission under subsection 4 of section 386.420 and in
         accordance with the procedures set forth in subdivisions
         (2) and (5) of this subsection;

      (2) If the effect of the unlawful or unreasonable commission
         decision issued on or after July 1, 2011, was to increase the
         public utility’s rates and charges in excess of what the
         public utility would have received had the commission not
         erred or to decrease the public utility’s rates and charges in
         a lesser amount than would have occurred had the
         commission not erred, then the commission shall be
         instructed on remand to approve temporary rate
         adjustments designed to flow through to the public utility’s
         then-existing customers the excess amounts that were
         collected by the utility plus interest at the higher of the
         prime bank lending rate minus two percentage points or
         zero. Such amounts shall be calculated for the period
         commencing with the date the rate increase or decrease
         took effect until the earlier of the date when the new rates
         and charges consistent with the court’s opinion became
         effective or when new rates or charges otherwise approved
         by the commission as a result of a general rate case filing
         or complaint became effective. Such amounts shall then be
         reflected as a rate adjustment over a like period of time.
         The commission shall issue its order on remand within
         sixty days unless the commission determines that

                                  15
               additional time is necessary to properly calculate the
               temporary or any prospective rate adjustment, in which
               case the commission shall issue its order within one
               hundred twenty days.

§ 386.520.2.

      The Commission erred in determining that it lacked statutory authority to

allow ratepayers to recover for the excess 2017 infrastructure surcharges. We

will grant this point, but we recognize that the amount of the adjustments in the

2017 infrastructure surcharge cases is still in question, because the Commission

did not calculate what percent of the work orders involved in the 2017 surcharge

cases involved ineligible plastic mains and service lines.

SPIRE’S APPEAL

      Spire argues in its appeal that the Commission erred to the extent, if any,

that its September 20, 2018, order determined that any of the costs in the

company’s 2017 infrastructure-surcharge cases were ineligible “because such

decision was void of findings of fact, conclusions of law, or any other language

in the Order that would support such a determination.” Spire makes the same

assertions here as it does in its suggestions regarding the Commission’s motion

to dismiss, i.e., that the Commission has indicated that it did not rule on the

merits of the 2017 infrastructure-surcharge cases as it “could not issue a refund

in any event.” Accordingly, Spire is assured that “appealing the Order is not

necessary to preserve its rights to later argue the merits of any future

[Commission] case on ineligible [infrastructure surcharge] costs in the 2017


                                       16
Cases.” The company asks this Court to find that the Commission’s order “did

not reach the issue of the eligibility or cost of plastic replacements in the 2017

Cases, did not quantify or order refunds or any replacement costs, and therefore

the Order in the 2017 Cases should not be vacated or reversed.” The only law

that Spire cites is a case giving the Commission the authority “to interpret its

own orders and to ascribe to them a proper meaning.” While we agree that the

Commission did not decide the merits of the 2017 infrastructure surcharges after

we remanded the 2016 infrastructure surcharge cases in In re Laclede Gas Co.,

there was no need for it to do so. Spire agreed that the final decision in that case

would be applied in the same manner to the costs for plastic mains and service

lines imposed on ratepayers for the 2017 projects. Once a final judicial opinion

held that the 2016 infrastructure surcharges were unlawful, no further

Commission rulings on eligibility were necessary in the 2017 cases. This point

is denied.

                                   Conclusion

      We deny the Commission’s motion to dismiss this appeal, having

concluded that it is not moot. Because the Commission erred in finding moot

and denying the OPC’s request that the excess 2017 infrastructure surcharges

contemplated in a stipulation and agreement between Spire and the OPC be

returned to ratepayers, we reverse and remand for further proceedings consistent

with this opinion. The Commission shall calculate the amount of the excess

surcharges using the method adopted and affirmed in the 2016 (WD82199,

                                        17
WD82299) infrastructure-surcharge appeals, and shall approve temporary rate

adjustments in that amount.

                                         /s/   Thomas H. Newton
                                         Thomas H. Newton, Presiding Judge


Anthony Rex Gabbert and Thomas N. Chapman, JJ. concur.




                                    18
