S T A T E O F M I C H I G A N BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION

Transcription

1 A CMS Energy Company April 3, 2018 Ms. Kavita Kale Executive Secretary Michigan Public Service Commission 7109 West Saginaw Highway Post Office Box General Offices: LEGAL DEPARTMENT One Energy Plaza Jackson, MI Tel: Fax: (517) (517) CATHERINE M REYNOLDS Senior Vice President and General Counsel *Washington Office: 1730 Rhode Island Ave. N.W. Tel: (202) MELISSA M GLEESPEN Suite 1007 Vice President, Corporate Washington, DC Fax: (202) Secretary and Chief Compliance Officer Writer s Direct Dial Number: (517) Writer s Address: anne.uitvlugt@cmsenergy.com SHAUN M JOHNSON Vice President and Deputy General Counsel Bret A Totoraitis Kelly M Hall Eric V Luoma Assistant General Counsel Ashley L Bancroft Robert W Beach Don A D Amato Robert A. Farr Gary A Gensch, Jr. Gary L Kelterborn Chantez P Knowles Mary Jo Lawrie Jason M Milstone Rhonda M Morris Deborah A Moss* Mirče Michael Nestor Michael C. Rampe James D W Roush Scott J Sinkwitts Adam C Smith Theresa A G Staley Janae M Thayer Anne M Uitvlugt Aaron L Vorce Attorney RE: Case No. U In the Matter of the application of Consumers Energy Company for authority to increase its rates for the distribution of natural gas and for other relief. Dear Ms. Kale: Enclosed for electronic filing in the above-captioned case, please find the Consumers Energy Company s Response Opposing the Retail Energy Supply Association s Motion for Leave to File Surrebuttal Testimony. This is a paperless filing and is therefore being filed only in PDF. I have included a Proof of Service showing electronic service upon the parties. Sincerely, Anne M. Uitvlugt cc: Hon. Suzanne D. Sonneborn, Administrative Law Judge Parties per Attachment 1 to Proof of Service fl

2 S T A T E O F M I C H I G A N BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION In the matter of the application of ) CONSUMERS ENERGY COMPANY ) for authority to increase its rates for the ) Case No. U distribution of natural gas and for other relief ) ) CONSUMERS ENERGY COMPANY S RESPONSE OPPOSING THE RETAIL ENERGY SUPPLY ASSOCIATION S MOTION FOR LEAVE TO FILE SURREBUTTAL TESTIMONY Pursuant to Rule 432 of the Michigan Administrative Hearing System s Rules of Practice and Procedure Before the Michigan Public Service Commission ( MPSC or the Commission ), Mich Admin Code R , Consumers Energy Company ( Consumers Energy or the Company ) files this Response Opposing the Retail Energy Supply Association s ( RESA ) Motion for Leave to File Surrebuttal Testimony ( Motion ) filed on March 29, In support of its Response, Consumers Energy states as follows: I. ARGUMENT In its Motion, RESA states that the Rules of Practice and Procedure before the Commission grant the Administrative Law Judge ( ALJ ) discretion to permit surrebuttal testimony. Mich Admin Code R (3). However, RESA failed to mention that the Commission long ago established that surrebuttal is, in typical legal practice, only rarely used, and [the Commission] finds no reason that the conduct of [Commission] hearings should normally depart from that practice. In re Consumers Power Company, MPSC Case No. U-6360, March 24, 1981 Order Denying Emergency Appeal, page 4. And, in fact, practice before the Commission has consistently borne that principle out. Surrebuttal is rare in MPSC proceedings. re

3 Moreover, RESA fails to address circumstances where the Commission does permit the use of surrebuttal testimony. In explaining its policy on surrebuttal testimony, the Commission has made clear that surrebuttal shall only be allowed when good cause is shown and when surrebuttal is essential to provide an adequate record from which the Commission can make a decision. See MPSC Case No. U-6090, November 14, 1979 Opinion and Order. RESA has failed to provide good cause to support the admission of its surrebuttal testimony and has also failed to establish that its proposed surrebuttal is essential to providing an adequate record in this proceeding. As support for its proposed surrebuttal testimony, RESA points to the fact that included in Company witness Elizabeth A. Curtis rebuttal testimony are certain statements and claims not previously filed by Consumers in this case, but require a response. Motion, page 2. To this point, Consumers Energy agrees. Consumers Energy never presented a proposal requesting implementation of a pooling program for gas transportation customers. This proposal was brought forth by RESA, and RESA has the obligation to support its proposed program. The Company s direct filing in this case would not have contained statements or claims regarding a pooling program for gas transportation customers - as this proposal was not requested and supported by the Company. Further, in its Motion, RESA contends that the proposed surrebuttal testimony provides the record with clarification in a manner that does not prejudice any party to this case. Motion, page 2. This is incorrect. The proposed surrebuttal testimony is prejudicial to Consumers Energy. Fundamental notions of procedural fairness dictate that the applicant in any proceeding should ordinarily have the last opportunity to respond to new legal and factual theories proposed by any party who challenges it. Otherwise, the applicant will not have an opportunity to address re

4 claims and arguments leveled against it. This practice goes right to the heart of basic notions of due process. If RESA s Motion is granted in this case, the Company would be deprived of any reasonable opportunity to address these further arguments made by RESA in support of its proposal. RESA s proposed testimony addresses point by point the criticisms raised by Ms. Curtis in the Company s rebuttal testimony. As RESA notes in its Motion, on page 12 of her rebuttal testimony, Ms. Curtis stated that RESA s pooling proposal was not specific and left a number of unanswered questions. The information provided by RESA walked through many of the concerns listed by Ms. Curtis, and point by point addressed the missing information this was done as an effort to rehabilitate RESA s direct case in this proceeding as much of this information could have been included in RESA s direct testimony. In other words, RESA offers this testimony not as surrebuttal, but arguably instead as supplemental direct testimony. At the very least, if RESA s Motion is granted, the ALJ should permit the Company an opportunity to submit additional surrebuttal of its own responsive to the new information provided. This is consistent with the previous Commission s decision. See MPSC Case No. U-11830, January 10, 2006 Opinion and Order. By granting RESA s Motion, the Company would be deprived of any reasonable opportunity to address RESA s claims further supporting the implementation of a gas transportation customer pooling program. Thus, if RESA s Motion is granted, the Company requests the ability to submit additional rebuttal of its own response to RESA s claims. re

5 II. PRAYER FOR RELIEF WHEREFORE, Consumers Energy Company respectfully requests that the Administrative Law Judge deny Retail Energy Supply Association s Motion for Leave to File Surrebuttal in its entirety or, in the alternative, permit Consumers Energy to file its own surrebuttal testimony. Respectfully submitted, CONSUMERS ENERGY COMPANY Dated: April 3, 2018 By: Anne M. Uitvlugt (P71641) Bret A. Totoraitis (P72654) Robert W. Beach (P73112) Gary A. Gensch, Jr. (P66912) Michael C. Rampe (P58189) Theresa A.G. Staley (P56998) One Energy Plaza Jackson, Michigan Attorneys for Consumers Energy Company (517) re

6 S T A T E O F M I C H I G A N BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION In the matter of the application of ) CONSUMERS ENERGY COMPANY ) for authority to increase its rates for the ) Case No. U distribution of natural gas and for other relief ) ) STATE OF MICHIGAN ) ) SS COUNTY OF JACKSON ) PROOF OF SERVICE Melissa K. Harris, being first duly sworn, deposes and says that she is employed in the Legal Department of Consumers Energy Company; that on April 3, 2018, she served an electronic copy of the Consumers Energy Company s Response Opposing the Retail Energy Supply Association s Motion for Leave to File Surrebuttal Testimony upon the persons listed in Attachment 1 hereto, at the addresses listed therein. She further states that she also served a hard copy of the same document to the Hon. Suzanne D. Sonneborn at the address listed in Attachment 1 by depositing the same in the United States mail in the City of Jackson, Michigan, with first-class postage thereon fully paid. Melissa K. Harris Subscribed and sworn to before me this 3 rd day of April, Tara L. Hilliard, Notary Public State of Michigan, County of Jackson My Commission Expires: 09/12/20 Acting in the County of Jackson ps

7 ATTACHMENT 1 TO CASE NO. U Administrative Law Judge Hon. Suzanne D. Sonneborn Administrative Law Judge 7109 West Saginaw Highway Post Office Box sonneborns@michigan.gov Counsel for the Michigan Public Service Commission Staff Lauren D. Donofrio, Esq. Amit T. Singh, Esq. Meredith R. Beidler, Esq. Monica M. Stephens, Esq. Assistant Attorneys General Public Service Division 7109 West Saginaw Highway Post Office Box donofriol@michigan.gov singha9@michigan.gov beidlerm@michigan.gov stephensm11@michigan.gov Michigan Public Service Commission Staff Gary Kitts Bill Stosik Dan Blair Brian Ballinger Paul Proudfoot Bob Nichols Michigan Public Service Commission 7109 West Saginaw Highway Post Office Box kittsg@michigan.gov stosikb@michigan.gov blaird@michigan.gov ballingerb2@michigan.gov proudfootp@michigan.gov nicholsb1@michigan.gov Counsel for Attorney General, Bill Schuette Joel B. King, Esq. John A. Janiszewski, Esq. Celeste M. Gill, Esq. Assistant Attorneys General Special Litigation Unit 6 th Floor Williams Building Post Office Box kingj38@michigan.gov janiszewskij2@michigan.gov gillc@michigan.gov AG-ENRA-Spec-Lit@michigan.gov Consultant for Attorney General Bill Schuette Sebastian Coppola, President Corporate Analytics 5928 Southgate Road Rochester, MI sebcoppola@corplytics.com Counsel for the Association of Businesses Advocating Tariff Equity ( ABATE ) Bryan A. Brandenburg, Esq. Michael J. Pattwell, Esq. Clark Hill PLC 212 East Grand River Avenue Lansing, MI bbrandenburg@clarkhill.com mpattwell@clarkhill.com Consultant for ABATE Jeffry C. Pollock Billie S. LaConte J. Pollock, Inc Olive Boulevard, Suite 585 St. Louis, MO jcp@jpollockinc.com bsl@jpollockinc.com KAT@jpollockinc.com sl Page 1 of 2

8 ATTACHMENT 1 TO CASE NO. U Counsel for Retail Energy Supply Association ( RESA ) Jennifer Utter Heston, Esq. Fraser Trebilcock Davis & Dunlap, P.C. 124 West Allegan, Suite 1000 Lansing, MI jheston@fraserlawfirm.com Counsel for the Lansing Board of Water & Light Jason T. Hanselman, Esq. Richard J. Aaron, Esq. Kyle M. Asher, Esq. Dykema Gossett, PLLC 201 Townsend Street, Suite 900 Lansing, MI jhanselman@dykema.com raaron@dykema.com kasher@dykema.com Counsel for Midland Cogeneration Venture Limited Partnership Jason T. Hanselman, Esq. Dykema Gossett PLLC 201 Townsend Street, Suite 900 Lansing, MI jhanselman@dykema.com Counsel for the Residential Customer Group Don L. Keskey, Esq. Brian W. Coyer, Esq. Public Law Resource Center PLLC 333 Albert Avenue, Suite 425 East Lansing, MI donkeskey@publiclawresourcecenter.com bwcoyer@publiclawresourcecenter.com sl Page 2 of 2