STATE OF MICHIGAN BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION

Transcription

1 STATE OF MICHIGAN BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION In the matter of the application of Consumers Energy Company for authority to increase its rates for the generation and distribution of electric and for other relief / Case No. U (Remand) (e-file paperless) MICHIGAN PUBLIC SERVICE COMMISSION STAFF S MOTION TO STRIKE PORTIONS OF THE PREFILED DIRECT TESTIMONY AND EXHIBITS OF THE RESIDENTIAL CUSTOMER GROUP S WITNESS GEOFFREY C. CRANDALL Pursuant to Rule 432 of the Commission s Rules of Practice and Procedure, R , and the schedule set by the Administrative Law Judge, the Michigan Public Service Commission Staff (Staff) moves to strike portions of the Residential Customer Group s (RCG) witness Geoffrey C. Crandall s prefiled direct testimony and exhibits on the grounds that these portions of Mr. Crandall s testimony and exhibits are not relevant to the limited scope of this remand proceeding. Introduction The primary issue in this remand proceeding is the resolution of the question posed by the Court of Appeals regarding Consumers AMI opt-out tariff, namely, whether the tariff represents a reimbursement for costs of service, or whether the tariff constitutes something more akin to a tax, sanction or penalty imposed upon customers who choose to opt out of the AMI program. Attorney General v Public Service Comm, unpublished opinion per curiam of the Court of Appeals, issued April 1

2 30, 2015 (Docket Nos , ) pp 5-6. Pursuant to the Court s remand, the Commission initiated the instant proceeding where the Commission clearly defined the scope of remand proceeding, quoting the sections of the Court of Appeals opinion cited above and stating in no uncertain terms that [i]ssues that do not fit within the scope of the remanded issues will not be entertained. MPSC Case No. U (Remand), 3/29/2016 Order, p 7. The Commission went further, allowing new evidence to be introduced into the record but included an express limitation, that [n]ew evidence must be evidence that became available after June 17, 2015 and must be relevant to the issues remanded by the Court that is, whether the amount of the opt-out tariff is cost-based or is in the nature of a penalty, and whether the amount of the opt-out tariff is being double-collected because it is already included in base rates. Id. at 8 (emphasis added.) Thus, the Commission introduced strict limitations to the scope of this remand proceeding to align it exactly with the specific questions remanded to the Commission by the Court. As detailed below, significant portions of RCG s witness Mr. Crandall s direct testimony and exhibits fall far outside the scope of this remand proceeding as set by the Commission. RCG Witness Geoffrey C. Crandall s testimony Mr. Crandall s testimony addresses issues not relevant to the scope of this case. Rule 401 of the Michigan Rules of Evidence (MRE) defines relevant evidence as evidence having the tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Furthermore, Rule 402 of the MRE states, 2

3 All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of Michigan, these rules, or other rules adopted by the Supreme Court. Evidence which is not relevant is inadmissible. (Emphasis added.) MRE 401 s definition of relevant evidence is composed of two components: the evidence must be both material and probative. People v Sabin, 463 Mich 43, 57; 614 NW2d 888 (2000). The materiality requirement derives from MRE 401 s direction that relevant evidence must be of consequence to the determination of the action, while the probative value requirement derives from MRE 401 s direction that relevant evidence must tend to make the existence of a material fact more probable or less probable than it would be without the evidence. Id. Additionally, [m]ateriality looks to the relation between the propositions for which the evidence is offered and the issues in the case. If the evidence is offered to help prove a proposition which is not a matter in issue, the evidence is immaterial. People v Mills, 450 Mich 61, 67; 537 NW2d 909, (1995). Mr. Crandall testifies to the supposed existence of facts that are of no consequence to the specific questions posed by the Court of Appeals in its remand. Furthermore, there is no relation between the portions of his evidence discussed below and the issues in this case. First, on pages 11 and 12 of his testimony, Mr. Crandall proposes a modification to Consumers Non-Transmitting Meter Tariff C5.5 that would include a signed consent agreement with each customer prior to installation of a smart meter. Crandall Direct, pp This proposal by Mr. Crandall has nothing to do, in any way, with answering the Court of Appeals 3

4 questions of whether the tariff represents a reimbursement for costs of service, or whether the tariff constitutes something more akin to a tax, sanction or penalty imposed upon customers who choose to opt out of the AMI program. Opinion, pp 5-6. In Consumers prior rate case, MPSC Case No. U-17735, the RCG attempted to insert this issue into the record as a way to reintroduce its repeatedly rejected 4 th Amendment claims pertaining to the AMI program. However, as a result of the ALJ in that case granting the Company s motion to strike those portions of Mr. Crandall s testimony, those references to 4 th Amendment issues were eliminated from the record. The RCG is simply recycling the issue of customer consent in this proceeding. There is no nexus between a proposed customer consent provision and issues iterated by the Commission to be considered in this proceeding. Next, beginning on page 13 of Mr. Crandall s testimony continuing through page 16 of his testimony, Mr. Crandall references the decisions of other states public utility decisions regarding the implementation of opt-out charges, specific tariff provision in Consumers opt-out tariff allowing for the Company to shut off service if access to install an AMI meter is denied, data collection issues, and the net effect of the AMI program on energy consumption. Crandall Direct, pp Missing from any of these portions of testimony is an analysis or explanation by Mr. Crandall as to how these issues either demonstrate that: (1) the opt-out tariff represents a reimbursement for costs of service; OR (2) that any of these costs are already accounted for in the utility s rates. The Commission was crystalline in defining the scope of this proceeding. Disregarding the specific, detailed 4

5 instructions of the nature and purpose of this proceeding provided by the Commission, the RCG again attempts to re-litigate issues in this proceeding that are not relevant to this remand proceeding. Relief Requested For the reasons set forth above, Staff respectfully requests that the following portions of the prefiled direct testimony and exhibits of RCG witness Geoffrey C. Crandall be stricken: Direct Testimony of RCG witness Geoffrey C. Crandall, pp 11-12, and pp Exhibits of RCG witness Geoffrey C Crandall, RCG-2, RCG-3, RCG-4 Respectfully submitted, MICHIGAN PUBLIC SERVICE COMMISSION STAFF DATED: September 22, 2016 U-17087/Mot to Strike Amit T. Singh (P75492) Assistant Attorney General Public Service Division 7109 W. Saginaw Hwy., 3rd Floor Lansing, MI Telephone: (517)

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21 STATE OF MICHIGAN BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION In the matter of the application of CONSUMERS ENERGY COMPANY for authority to increase its rates for the generation and distribution of electric and for other relief. / Case No. U (Remand) (e-file/paperless) STATE OF MICHIGAN ) ) ss COUNTY OF EATON ) PROOF OF SERVICE PAMELA A. PUNG, being first duly sworn, deposes and says that on September 22, 2016, she served a true copy of MICHIGAN PUBLIC SERVICE COMMISSION STAFF S MOTION TO STRIKE PORTIONS OF THE PREFILED DIRECT TESTIMONY OF THE RESIDENTIAL CUSTOMER GROUP S WITNESS GEOFFREY C. RANDALL upon the following parties VIA ONLY as indicated on the attached Service List. PAMELA A. PUNG Subscribed and sworn to before me this 22nd day of September, Tina L. Bibbs, Notary Public State of Michigan, County of Clinton Acting in the County of Eaton My Commission Expires:

22 Service List MPSC Case No. U (Remand) Consumers Energy Company H. Richard Chambers Bret A. Totoraitis Raymond E. McQuillan Consumers Energy Company One Energy Plaza Jackson, MI Michigan Environmental Council and Natural Resources Defense Council Christopher M. Bzdok Emerson Hilton Olson, Bzdok & Howard 420 E. Front St. Traverse City, MI Energy Michigan Eric J. Schneidewind Varnum Riddering Schmidt & Howlett The Victor Center # N. Washington Sq. Lansing, MI Hemlock Semiconductor Corp. Jennifer Utter Heston Fraser, Trebilcock, Davis & Dunlap, P.C. 124 W. Allegan St., Ste Lansing, MI

23 Michigan State Utility Workers Council, Utility Workers Union of America, and AFL-CIO Steven D. Weyhing Warner Norcross & Judd LLP 120 N. Washington Square, Ste. 410 Lansing, MI The Kroger Company Kurt J. Boehm Jody M. Kyler Boehm, Kurtz & Lowry 36 East Seventh Street, Suite 1510 Cincinnati, OH Anthony J. Szilagyi Law Offices of Anthony J. Szilagyi 110 South Clemens Avenue Lansing, MI Kevin Higgins Energy Strategies, LLC Parkside Towers 215 South State Street, Ste. 200 Salt Lake City, UT Midland Cogeneration Venture Limited Partnership David R. Whitfield Warner Norcross & Judd LLP 111 Lyon Street N.W. 900 Fifth Third Center Grand Rapids, MI Municipal Coalition Leland R. Rosier 212 E. Grand River Avenue Lansing, MI Richard J. Aaron Warner Norcross & Judd, LLP 120 N. Washington Sq., Ste. 410 Lansing, MI

24 FirstEnergy Solutions Corporation Laura Chappelle Varnum Riddering Schmidt & Howlett The Victor Center # N. Washington Sq. Lansing, MI Timothy J. Lundgren Varnum Riddering Schmidt & Howlett 333 Bridge Street P.O. Box 352 Grand Rapids, MI Attorney General Michael E. Moody John A. Janiszewski Assistant Attorneys General Environment, Natural Resources, and Agriculture Div. G. Mennen Williams Bldg., 6th Floor 525 W. Ottawa St.; P.O. Box Lansing, MI Michigan Community Action Agency Association Don L. Keskey Brian W. Coyer Public Law Resource Center PLLC 139 W. Lake Lansing Rd., Ste. 210 East Lansing, MI Administrative Law Judge Hon. Mark E. Cummins Administrative Law Judge Michigan Public Service Comm. 525 W. Allegan St. 3rd Floor, North Tower Lansing, MI Michigan Cable Telecommunications Association David E.S. Marvin Fraser Trebilcock Davis & Dunlap 124 W. Allegan St., Ste Lansing, MI Association of Businesses Advocating Tariffs Robert A.W. Strong Clark Hill PLC 151 S. Old Woodward Ave. Ste. 200 Birmingham, MI James T. Selecky Brubaker & Associates, Inc Swingley Ridge Road, Ste. 140 Chesterfield, MO