MISSOURI COURT OF APPEALS

WESTERN DISTRICT

IN THE MATTER OF THE 

APPLICATION OF LACLEDE GAS 

COMPANY TO CHANGE ITS

INFRASTRUCTURE SYSTEM 

REPLACEMENT SURCHARGE IN ITS 

MISSOURI GAS ENERGY SERVICE 

TERRITORY; IN THE MATTER OF 

THE APPLICATION OF LECLEDE 

GAS COMPANY TO CHANGE ITS

INFRASTRUCTURE SYSTEM 

REPLACEMENT SURCHARGE IN ITS 

LACLEDE GAS SERVICE 

TERRITORY; THE OFFICE OF 

PUBLIC COUNSEL;

 

 Appellant,

SPIRE MISSOURI, INC., 

 Appellant,

 v.

THE MISSOURI PUBLIC SERVICE 

COMMISSION,

 Respondent. 

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WD82200 and 

WD82297

OPINION FILED:

November 19, 2019

APPEAL FROM THE PUBLIC SERVICE COMMISSION

Before Division Two: Thomas H. Newton, Presiding Judge, 

Anthony Rex Gabbert, and Thomas N. Chapman, Judges
2

The Office of Public Counsel (OPC)1and Spire Missouri, Inc., a gas 

corporation and public utility, appeal a Public Service Commission2

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

to, ratepayers excess infrastructure surcharges3related 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).
3

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.
4

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 found ineligible by this 

Court with respect to the 2016 cases and due to be refunded under the parties’ agreement in the 2017 

cases.
5

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 overcollection 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 could be provided through a line item on 

customers’ bills or through a separate and independent temporary rate adjustment under section 

386.520.2(2).
6

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 
7

that determination. We consolidated the appeals of the 2017 infrastructuresurcharge 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 infrastructuresurcharge 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, 
8

“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 reflected 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).
9

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 in the 2016 infrastructuresurcharge 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.
10

infrastructure-surcharge cases, subject only to a calculation of the refunds owed 

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 
11

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 
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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. 
13

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

OPC’s Recommendation following our remand of the 2016 infrastructuresurcharge 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 order 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 is not, 

however, before this Court.
14

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.”
15

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 
16

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 
17

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, 
18

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.