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 CASE NO: U-16794 electricity and for other relief. VOLUME 1 / Proceedings held in the above-entitled matter before Sharon L. Feldman, Administrative Law Judge, at the Michigan Public Service Commission, 6545 Mercantile Way, Room D, Lansing, Michigan, on Monday, July 18, 2011, at 9:15 a.m. APPEARANCES: MR. ERIC V. LUOMA (P42678) CONSUMERS ENERGY COMPANY One Energy Plaza Drive, Room EP11-441 Jackson, Michigan 49201 517)788-0980 evluoma@cmsenergy.com Appearing on Behalf of Consumers Energy Company MS. ANNE M. UITVLUGT (P71641) MR. MOE FREEDMAN (P74224) ASSISTANT ATTORNEY GENERAL Public Service Division 6545 Mercantile Way, Suite 15 Lansing, Michigan 48911 (517)241-6680 uitvlugta@michigan.gov freedmanm1@michigan.gov Appearing on behalf of the Michigan Public Service Commission Staff
2 1 APPEARANCES, CONTINUED: 2 MR. DON L. KESKEY (P23003) PUBLIC LAW RESOURCE CENTER, P.L.L.C. 3 505 North Capitol Avenue Lansing, Michigan 48933 4 (517)999-7572 5 Appearing on Behalf of Michigan Community Action Agency Association 6 MR. ROBERT A.W. STRONG (P27724) 7 CLARK HILL, P.L.C. 151 South Old Woodward Avenue, Suite 200 8 Birmingham, Michigan 48009 (248)988-5861 9 rstrong@clarkhill.com 10 Appearing on Behalf of ABATE 11 MR. ERIC J. SCHNEIDEWIND (P20037) VARNUM, L.L.P. 12 201 North Washington Square, Suite 810 Lansing, Michigan 48922 13 (517)482-6237 ejschneidewind@varnumlaw.com 14 Appearing on Behalf of Energy Michigan 15 MR. LELAND R. ROSIER (P33827) 16 CLARK HILL, P.L.C. 212 East Grand River 17 Lansing, Michigan 48906 (517)318-3100 18 lrrosier@clarkhill.com 19 Appearing on Behalf of Municipal Coalition 20 MR. STEVEN D. WEYHING (P30749) KELLEY CAWTHORNE 21 208 North Capitol Avenue, Third Floor Lansing, Michigan 48933 22 (517)371-1400 sweyhing@kelley-cawthorne.com 23 Appearing on Behalf of Michigan State Utility 24 Workers Council 25
3 1 APPEARANCES, CONTINUED: 2 MR. DAVID WHITFIELD (P73352) WARNER, NORCROSS & JUDD, L.L.P. 3 111 Lyon Street NW, Suite 900 Grand Rapids, Michigan 49503 4 (616)752-2745 dwhitfield@wnj.com 5 Appearing on Behalf of Midland Cogeneration 6 Venture Limited Partnership 7 MS. SAMANTHA A. KOPACZ (P70939) FRASER, TREBILCOCK, DAVIS & DUNLAP, P.C. 8 124 West Allegan, Suite 1000 Lansing, Michigan 48933 9 (517)482-5800 skopacz@fraserlawfirm.com 10 Appearing on Behalf of Hemlock Semiconductor 11 Corporation 12 MR. JOHN C. SCHERBARTH (P28865) MICHIGAN DEPARTMENT OF ATTORNEY GENERAL 13 525 West Ottawa Street P.O. Box 30755 14 Lansing, Michigan 48909 (517)373-7540 15 scherbarthj@michigan.gov 16 Appearing on Behalf of Attorney General Bill Schuette 17 MR. CHRISTOPHER M. BZDOK (P53094) 18 OLSON, BZDOK & HOWARD, P.C. 420 East Front Street 19 Traverse City, Michigan 49686 (231)946-0044 20 chris@envlaw.com 21 Appearing on Behalf of MEC and NRDC 22 23 24 25
4 1 APPEARANCES, CONTINUED: 2 MR. KURT J. BOEHM BOEHM, KURTZ & LOWRY 3 36 East Seventh Street, Suite 1510 Cincinnati, Ohio 42502 4 (513)421-2255 5 6 kboehm@bkllawfirm.com Appearing on Behalf of The Kroger Company MR. PHIL FORNER 7 P.O. Box 296 Allendale, Michigan 49401 8 (616)299-0275 9 10 aheat@altelco.net Appearing in Pro Per 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
5 1 Monday, July 18, 2011 2 Lansing, Michigan 3 9:15 a.m. 4 JUDGE FELDMAN: Good morning. We are opening 5 a record in Michigan Public Service Commission 6 Case Number U-16794 entitled in the matter of the 7 application of Consumers Energy Company for authority 8 to increase its rates for the generation and 9 distribution of electricity and for other relief. 10 For the record, my name is Sharon Feldman. 11 I've been assigned to be the presiding officer. 12 This is the time and place set by the 13 Commission for a prehearing conference in this matter. 14 Can I ask the counsel present to place their 15 appearances on the record, please. 16 Mr. Luoma? 17 MR. LUOMA: Yes, Your Honor, good morning. 18 Eric Luoma, L-u-o-m-a, appearing on behalf of Consumers 19 Energy Company. 20 JUDGE FELDMAN: Thank you. 21 Mr. Strong? 22 MR. STRONG: Robert A.W. Strong appearing on 23 behalf of the Association of Businesses Advocating 24 Tariff Equity. 25 THE COURT: Thank you.
6 1 MR. SCHNEIDEWIND: Eric Schneidewind 2 appearing for Energy Michigan. 3 MR. BOEHM: Kurt Boehm on behalf of the 4 Kroger Company. 5 MR. ROSIER: Leland Rosier on behalf of the 6 Municipal Coalition. 7 MR. WEYHING: Steve Weyhing on behalf of the 8 Michigan State Utility Workers Council. 9 JUDGE FELDMAN: Mr. Freedman? 10 MR. FREEDMAN: Moe Freedman on behalf of the 11 Staff of the Michigan Public Service Commission. I'm 12 also entering the appearance of Bret Totoraitis and 13 Anne Uitvlugt on behalf of Pat Barone. 14 JUDGE FELDMAN: All right. Thank you. 15 Mr. Whitfield? 16 MR. WHITFIELD: Good morning, Your Honor. 17 David Whitfield on behalf of Midland Cogeneration 18 Venture. 19 JUDGE FELDMAN: Thank you. 20 And, Mr. Forner, I know you're not an 21 attorney, but if you'd like to place your appearance on 22 the record now, you may do so. 23 MR. FORNER: Thank you, Your Honor. 24 Phil Forner on behalf of myself. 25 JUDGE FELDMAN: Thank you.
7 1 Ms. Kopacz? 2 MS. KOPACZ: Samantha Kopacz on behalf of 3 Hemlock Semiconductor Corporation. 4 JUDGE FELDMAN: Thank you. 5 Mr. Keskey? 6 MR. KESKEY: Good morning, Your Honor. Don 7 Keskey appearing on behalf of the Michigan Community 8 Action Agency Association. 9 JUDGE FELDMAN: Thank you. 10 And Mr. Scherbarth? 11 MR. SCHERBARTH: John Scherbarth appearing on 12 behalf of Mike Moody who's appearing on behalf of 13 Attorney General, Bill Schuette. 14 JUDGE FELDMAN: Thank you. 15 And Mr. Bzdok? 16 MR. BZDOK: Good morning, Your Honor. 17 Christopher Bzdok on behalf of the Michigan 18 Environmental Council and the Natural Resources Defense 19 Council. 20 JUDGE FELDMAN: All right. Thank you. 21 Mr. Luoma, first let me ask you if Consumers 22 Energy Company was able to comply with the executive 23 secretary's instructions regarding notice of this 24 proceeding. 25 MR. LUOMA: Yes, we were, Your Honor, and as
8 1 proof of that we filed by electronic filing on July 1, 2 2011, a copy of the notice along with the proof of 3 service. Then additionally on July 15th by electronic 4 filing we were able to file the various affidavits of 5 publication or tear sheets affirming the publication of 6 the notice of hearing. Those were both electronically 7 filed; however, if any party has not had an opportunity 8 to see them, I also have hard copies with me today for 9 their potential review. 10 JUDGE FELDMAN: Thank you. 11 Mr. Freedman, did Staff have any comments or 12 concerns regarding notice in this matter? 13 MR. FREEDMAN: No, Your Honor. 14 JUDGE FELDMAN: Thank you. 15 Did anybody else? All right. 16 First, let me turn to the motion that I have 17 for Mr. Boehm to practice pro hac vice. Are there any 18 objections to my granting that motion in accordance 19 with the state bar's rules? 20 All right. Then that motion is granted. I 21 will issue a ruling to that effect in accordance with 22 the court rules at my earliest opportunity. 23 MR. BOEHM: Thank you, Your Honor. 24 JUDGE FELDMAN: Next let me note that at this 25 prehearing conference the Commission has provided an
9 1 opportunity for members of the public who might wish to 2 make a statement under the Commission's Rule 207 to do 3 so. It's my understanding that there is no one present 4 here who wishes to make such a statement, but let me 5 just ask for the record. 6 Hearing none, then we will move on to the 7 interventions. 8 We have intervention petitions from ABATE, 9 from Energy Michigan, Inc., from the Michigan State 10 Utility Workers Council, from Kroger, from the Midland 11 Cogeneration Venture Limited Partnership, from Hemlock 12 Semiconductor Corporation, from MEC and NRDC, from 13 MCAAA, from the Municipal Coalition, from the Attorney 14 General, and from Mr. Forner. 15 Are there any objections to those petitions? 16 Mr. Luoma? 17 MR. LUOMA: Consumers Energy only objects to 18 one of those petitions, and that's Mr. Forner's 19 petition. I wasn't aware until the Court just said 20 that he had petitioned to intervene, and I would assume 21 that that intervention was filed sometime this weekend 22 or possibly today. Thus, based on the fact that it's 23 untimely, and the notice was very clear about if you 24 wanted to intervene it had to be by July 11th, and I 25 believe that there's a requirement of showing of good
10 1 cause as to why you couldn't comply with the July 11th 2 date, not having seen any of his filing, I would still 3 be somewhat skeptical if there's any good cause within 4 that file. So, thus, that would be my objection. 5 As to all other parties, Consumers Energy has 6 no objections. 7 JUDGE FELDMAN: Mr. Freedman? 8 MR. FREEDMAN: I'll let Anne state our 9 position. 10 JUDGE FELDMAN: Ms. Uitvlugt? 11 MS. UITVLUGT: Your Honor, Staff objects to 12 Mr. Forner's petition to intervene in this case. 13 Mr. Forner served his request for leave to -- or 14 request to intervene on Saturday. He was served and 15 properly noticed by the Company. The Company has 16 indicated in its proof of service that he was served 17 with the case on July 1st. Petitions to intervene were 18 supposed to be filed by July 11th. Late intervention 19 is often allowed at the Commission; however, you have 20 to cite reasons of good cause. Mr. Forner's petition 21 does not do so. 22 Additionally, Your Honor, it is Staff's 23 position that Mr. Forner is unable to establish an 24 injury. In fact, in this case, while he is a Consumers 25 electric customer, the issues that he has to -- or that
11 1 he is bringing up with respect to the ASP program the 2 Commission has previously indicated should be dealt 3 with in a complaint proceeding and that was in 4 Case Number U-15244. 5 Staff would like to note that at this time 6 Mr. Forner has an ongoing complaint proceeding that is 7 addressing all of the issues that we believe Mr. Forner 8 will raise and those are the issues that he has 9 indicated in his petition to intervene as that case is 10 ongoing and awaiting a PFD, and we believe that it is 11 inappropriate at this time for him to raise the same 12 issues in this proceeding. 13 JUDGE FELDMAN: All right. 14 Mr. Forner, I'm going to give you an 15 opportunity to speak to that in just a minute, but let 16 me state, then, for the record that the petitions to 17 intervene of ABATE, of Energy Michigan, Inc., of the 18 Michigan State Utility Workers Council, of Kroger, of 19 the Midland Cogeneration Venture Limited Partnership, 20 Hemlock Semiconductor, MEC, NRDC, MCAAA, Municipal 21 Coalition, and the Attorney General are granted. 22 Other than Mr. Forner, did I miss anybody? 23 All right. Mr. Forner, you've heard 24 Mr. Luoma's and Ms. Uitvlugt's objections to your 25 petition. How do you respond?
12 1 MR. FORNER: Thank you, your Honor. I'll 2 take the late intervention first -- issue first. 3 I got -- well, short of it is I got a new 4 phone and my reminder didn't come up and that's why I 5 missed it. 6 If it pleases this tribunal, I'd be glad to 7 file a late petition to intervene and explain all my 8 reasons for that. I do apologize for not getting it in 9 sooner. 10 As for Staff's position about the merits of 11 that, there's two appeals still pending on 142 -- 15245 12 and then the subsequent case. I intervened because if 13 the courts do agree with me and say that this issue is 14 proper before -- in a rate case, then I want to be up 15 to speed instead of, you know, not being up to speed 16 and have to come in after the fact. 17 If the Commission at the end of this, like it 18 did in the previous two, says, well, you know, we're 19 not going to deal with it, you know, it's not part of 20 this rate case, so be it. But I guess I see it as a 21 best of the worst-case scenario. I mean, participate 22 and, you know, potentially, you know, have the courts 23 uphold the Commission's previous ruling and saying it's 24 not part of the rate case and then I've wasted my time, 25 but if the courts do uphold my position that it is part
13 1 of a rate case, then I'm up to speed and I won't have 2 to ask the Staff or the parties to make any exceptions 3 to my participation at that time. 4 JUDGE FELDMAN: Thank you. 5 Mr. Luoma, anything further? You said you 6 hadn't seen the petition. Are you comfortable with my 7 ruling on it today? 8 MR. LUOMA: Yes, I am, Your Honor. I have 9 nothing further. 10 JUDGE FELDMAN: Ms. Uitvlugt? 11 MS. UITVLUGT: Your Honor, I would just like 12 to note that the complaint proceeding is not a rate 13 case but it is dealing with the exact same issues which 14 would lower -- if Mr. Forner's petition is correct, it 15 would have the effect of lowering rates, and to adjust 16 the Company's rates and to reduce them there would not 17 have to be a rate case proceeding. 18 MR. FORNER: Your Honor? 19 JUDGE FELDMAN: Yes? 20 MR. FORNER: The complaint case that Staff 21 references is for a previous time period, it's not for 22 the same time period as what this rate case is for, so 23 the facts would be different. The issues would be the 24 same; the facts would be different. 25 JUDGE FELDMAN: All right. Mr. Forner, I'm
14 1 going to grant your petition to intervene recognizing 2 that that petition was late filed. I'm going to 3 prevent you from holding up an agreement that the other 4 parties might reach on a schedule in this matter. That 5 is customary with late intervention. You take the 6 schedule as you find it. 7 I'm also going to caution you since the 8 parties raise some issues regarding the potential 9 relevance of the matters that they expect your 10 testimony to deal with, if you choose to file testimony 11 in this matter, you should be expecting a motion to 12 strike as the appropriate vehicle for them to bring 13 their concerns with the scope of your testimony to my 14 attention. 15 MR. FORNER: Thank you, Your Honor. 16 JUDGE FELDMAN: Is there anything further 17 before we turn to a schedule in this matter? Anything 18 at all? 19 All right. 20 MR. BZDOK: Your Honor? 21 JUDGE FELDMAN: Yes? 22 MR. BZDOK: I expect on behalf of NRDC now 23 that they've been admitted as an intervening party, 24 they have a staff counsel, the gentleman's name is 25 Shannon Fisk, he's out of Chicago, he has been admitted
15 1 pro hac to participate in the Detroit Edison rate case. 2 I am not making an oral motion for pro hac vice 3 admission, I'm simply asking on the record if anybody 4 would object to waiving a hearing on said motion when I 5 do file it. 6 JUDGE FELDMAN: Are you asking that the 7 parties then just communicate to me via e-mail? 8 MR. BZDOK: Correct. Or file an opposition 9 if they have an opposition. But I'm simply looking to 10 obviate the need for a hearing. 11 JUDGE FELDMAN: All right. Then does anybody 12 have any responses, concerns? 13 Is it acceptable to everybody that I would be 14 able to, assuming that it appeared to me to comply with 15 the court rules, and everybody else communicated to me 16 that they had no objection, that I would go ahead and 17 issue a ruling on that motion without the need for a 18 hearing? And in the event that anybody did have an 19 objection, I would schedule a hearing before issuing a 20 ruling. Is that acceptable? Is that an acceptable way 21 to proceed? 22 Is that what you had in mind, Mr. Bzdok? 23 MR. BZDOK: That will work great, Your Honor. 24 JUDGE FELDMAN: All right. Any objections to 25 that?
16 1 MR. STRONG: We have no objection. 2 MR. SCHNEIDEWIND: No objection. 3 MR. BOEHM: No objection. 4 MR. ROSIER: No objection. 5 MR. WEYHING: No objection. 6 JUDGE FELDMAN: All right. And Mr. Freedman? 7 MR. FREEDMAN: No. 8 JUDGE FELDMAN: All right. Excellent. 9 MR. LUOMA: None. 10 JUDGE FELDMAN: Then we will proceed that 11 way, and I will make sure that I hear from everybody 12 before I would go ahead and grant a motion like that. 13 Anything else before we turn to scheduling? 14 All right. It's my understanding that the 15 parties have had some preliminary conversations this 16 morning regarding a schedule in this matter and that 17 there may be some substantial agreement. But would the 18 parties like any additional time to discuss scheduling? 19 MR. FREEDMAN: I'm all set. 20 JUDGE FELDMAN: All right. Then -- 21 MR. STRONG: I think I would. 22 JUDGE FELDMAN: All right. Let's go off the 23 record, and I'll give you a few moments to discuss the 24 schedule. 25 (Break taken 9:29 a.m. to 9:41 a.m.)
17 1 JUDGE FELDMAN: Let's go back on the record. 2 All right. Mr. Luoma, it's my understanding 3 the parties have not been able to reach a final 4 agreement on the schedule that we should establish in 5 this matter and we're -- can you state for the record 6 where you believe matters stand? 7 MR. LUOMA: That's correct, Your Honor. 8 We're close, but we're a few days off here and there. 9 Based on hopefully providing an equal amount of grief 10 to all parties, Consumers would propose basically the 11 Staff's schedule with a couple modifications. 12 So the dates would be the prehearing on 13 July 18th, 2011, which is obviously today; Staff and 14 intervenor testimony due 11/15/2011, as on the Staff's 15 proposed version; rebuttal testimony, rather than being 16 the 11/29/2011 date, Consumers would propose 12/1/2011; 17 motions to strike, rather than being 12/6/2011, would 18 be moved to 12/8/11; responses to motion to strike 19 would be according to the Staff's proposed schedule of 20 12/12/2011; cross-examination, assuming Your Honor's 21 availability, would be December 13th through 22 December 22nd; initial briefs would be due 23 January 24th, 2012; reply briefs February 14th, 2012. 24 JUDGE FELDMAN: All right. Where is Staff in 25 terms of the schedule that Staff is requesting?
18 1 MR. FREEDMAN: Staff is perfectly okay with 2 the schedule that Mr. Luoma proposed which is just a 3 slight revision to the Staff's original proposed 4 schedule. 5 JUDGE FELDMAN: All right. 6 Mr. Schneidewind? 7 MR. SCHNEIDEWIND: Your Honor, based upon the 8 Staff filing in the current Detroit Edison general rate 9 case, Energy Michigan anticipates a significant -- or a 10 Staff proposal for a new charge applicable to open 11 access customers and this schedule encompasses the 12 Thanksgiving break. So we anticipate -- and witnesses 13 being either -- well, certainly reduced availability 14 during that time. So Energy Michigan would propose 15 that the schedule which now really gives, although it 16 looks like it's 16 days, you know, witnesses will not 17 be available between, you know, two days and seven days 18 because of vacation plans. So we would propose 19 December 5th, which is a Monday, and would require us 20 undoubtedly to work over the weekend plus give us 21 discovery hopefully two rounds to prepare our rebuttal 22 testimony. 23 Once again, I would not be advocating this 24 were it not for the fact that the current posture of 25 Staff does involve a major new issue which is very
19 1 complicated, financial -- a complicated financial issue 2 which will require discovery and a substantial amount 3 of work. So I propose December 5th, which is a Monday, 4 for the rebuttal filing date. 5 JUDGE FELDMAN: And Mr. Strong? 6 MR. STRONG: Your Honor, I've consulted with 7 one of my principal witnesses in connection with this 8 case and asked whether or not the schedule was doable. 9 He wanted rebuttal testimony due on the 8th of 10 December. I suggested that perhaps that wasn't doable, 11 we could do it on the 5th. And, again, this is in 12 connection with witness availability to actually 13 prepare the testimony. The Thanksgiving break or 14 holiday is going to be problematical for us in terms of 15 getting the testimony prepared. We think that there is 16 a potential for perhaps substantial rebuttal testimony 17 in the case, depending upon, you know, how the 18 testimony comes out from the other parties in this 19 proceeding, and, therefore, we want to be in a position 20 to fully meet our responsibility and file meaningful 21 rebuttal testimony which means that we need until 22 December 5th. 23 JUDGE FELDMAN: Anybody else have any 24 objections to the schedule that Mr. Luoma stated? 25 All right.
20 1 Mr. Freedman, do you have any response you 2 want to make to Mr. Schneidewind's or Mr. Strong's 3 concerns, or Ms. Uitvlugt? 4 MR. FREEDMAN: We would be willing to 5 compromise a little and make it the 2nd for the date 6 for rebuttal and give them a little bit of extra time, 7 but the -- you know, we understand that the 8 Thanksgiving holiday will be a tough time for 9 everybody, but, you know, the schedule -- working out 10 the schedule has been tough for everybody. Staff does 11 have four rate cases going at the time. 12 If his -- if the new time is based on the 13 fact that Staff has had a complicated position in the 14 past, perhaps the fact that this is not the first time 15 the Staff has had that position might alleviate those 16 concerns, maybe give him time to prepare in advance for 17 those -- for that eventuality. But, again, like I 18 said, we can compromise a little bit, but I think the 19 5th is a little bit too late. 20 JUDGE FELDMAN: And other than -- I mean, you 21 mentioned that Staff has other cases pending. Does 22 that relate to Staff's concern about the choice of 23 rebuttal filing date? 24 MR. FREEDMAN: Yes, because moving the 25 rebuttal date too far back would -- might necessitate
21 1 moving some of the other dates back which would not be 2 possible for -- we have some of the cross-examination 3 on a lot of the cases very close to each other, and 4 some of the rest of the schedules is not very flexible. 5 JUDGE FELDMAN: Mr. Luoma, did you have -- 6 did Consumers Energy have any concerns with changing 7 that rebuttal date from the December 1st date you 8 stated? 9 MR. LUOMA: Well, it's a mixed-feeling 10 concern, Your Honor, because, obviously, Consumers 11 wouldn't mind having the additional time for rebuttal 12 also. However, when you look at when the 13 cross-examination starts, if, for example, rebuttal was 14 extended to 12/5 or 12/8, now we're looking at eight to 15 five days before the beginning of cross-examination, 16 and I don't -- and there was mention by one of the 17 parties wanting to do two rounds of discovery. I don't 18 know how you can do two rounds of discovery in five to 19 eight days. So we're -- it's -- everything is 20 compressed. 21 I want to -- Consumers would have no problem 22 going to 12/2/2011 for rebuttal. I think it's a bad 23 situation all around, but I think it's the best that 24 can be done. 25 JUDGE FELDMAN: Anything further, Mr. Strong
22 1 and Mr. Schneidewind? 2 MR. STRONG: Your Honor, I think it was -- 3 the reference to two rounds of discovery was prior to 4 the filing of rebuttal so that we would have enough 5 time to actually do that. 6 Your Honor, obviously, you know, given the 7 APA requirements to have competent material and 8 substantial evidence on the record, it is important 9 that the evidence that gets filed in this case in the 10 form of prefiled rebuttal testimony is competent 11 material and substantial and, therefore, we have to 12 have enough time to prepare that testimony. 13 And if somebody is concerned about 14 post-rebuttal discovery, then you cross-examine the 15 witnesses and you can do it that way or, obviously, 16 we're going to have to try to cooperate with all of the 17 parties in terms of responding to any discovery 18 requests very promptly, and we're willing to commit to 19 do that. 20 JUDGE FELDMAN: All right. I understand that 21 the schedules that we're required to set in these cases 22 must of necessity be tighter than can readily 23 accommodate everybody's schedule to the extent that I 24 know we would all like to do. As I look at this 25 schedule and the deadlines that we're facing, I don't
23 1 see any significant ability to move the 2 cross-examination dates from the stated December 13th 3 to December 22nd date, and I am concerned that if we 4 move the rebuttal date too close to that date that the 5 parties will not have adequate time to review and 6 understand the rebuttal filings to prepare for 7 cross-examination. And I don't want to just encourage 8 the parties to do all of their discovery regarding 9 rebuttal through their cross-examination. I don't 10 think that's very helpful for the record, and I don't 11 really think it's in the best interests of the parties 12 to have information that they're not familiar with just 13 coming at them that way. So I am going to set the 14 rebuttal date for December 2nd, 2011. 15 And I'm going to say to ABATE and to Energy 16 Michigan, Inc., that, nonetheless, once the direct 17 testimony of Staff and intervenors is filed, if you are 18 facing, you know, concrete record with concrete 19 deadlines and you have specific needs, you may raise by 20 motion the question to extend that date to the 5th or, 21 you know, what you believe circumstances require for 22 your witnesses' rebuttal testimony. I hope you won't 23 do that just as a matter of form, but if, you know, as 24 you say now, talking about what Staff or any of the 25 other parties might file, what information you may or
24 1 may not need seems highly speculative, at the point 2 that it becomes more concrete, you may raise that 3 matter again. 4 Therefore, the schedule that we will set in 5 this matter is that Staff and intervenor testimony will 6 be due November 15th, 2011; rebuttal testimony will be 7 filed not later than December 2nd, 2011, with the 8 exception that I stated which generally applies to all 9 our dates too that the parties are free to file a 10 motion if they believe an extension is warranted; 11 motions to strike will be due by December 8th, 2011; 12 responses to motions to strike by December 12th, 2011; 13 cross-examination will take place December 13th through 14 December 22nd, 2011 -- hopefully the weekdays only; 15 initial briefs will be due January 24th, 2012; reply 16 briefs February 14th, 2012; and I'll set a proposal for 17 decision target date of March 30th, 2012. 18 Now, there are other dates here for 19 exceptions and replies. Are those dates that the 20 parties had an opportunity to agree to on this... 21 MR. LUOMA: Those have not been discussed, 22 Your Honor, because we were going under -- at least I 23 was going under the assumption of once the proposal for 24 a decision is actually issued, then those dates would 25 be established.
25 1 JUDGE FELDMAN: Well, let's go off the record 2 a moment and see if we can't resolve that. 3 (Off-the-record discussion.) 4 JUDGE FELDMAN: Let's go back on the record, 5 then. 6 We had provisionally, and I won't put this 7 into the scheduling memo, but we will provisionally set 8 April 13, 2012, as the date for filing of exceptions to 9 the proposal for decision and April 24th, 2012, as the 10 date for filing replies to exceptions to the proposal 11 for decision. 12 MR. SCHNEIDEWIND: Your Honor? 13 JUDGE FELDMAN: Yes? 14 MR. SCHNEIDEWIND: In terms of discovery, I 15 would like, given the compressed period between Staff 16 testimony and rebuttal, I would like to ask that during 17 that time frame the turnaround and discovery be five 18 calendar days or best efforts. 19 JUDGE FELDMAN: Have the parties agreed to a 20 discovery turnaround for the prior period, the period 21 up to the Staff and intervenor filing date? 22 MR. LUOMA: We have not discussed that. 23 MR. FREEDMAN: We did not discuss it. 24 JUDGE FELDMAN: All right. 25 MR. FREEDMAN: We would -- we were under the
26 1 assumption it would be the typical 14 calendar days 2 before the rebuttal period. 3 MR. SCHNEIDEWIND: That's not typical for 4 rebuttal. 5 JUDGE FELDMAN: All right. Let's go off the 6 record, and I can let you see if you can reach 7 agreement. 8 (Break taken 9:59 a.m. to 10:05 a.m.) 9 JUDGE FELDMAN: On the record. 10 Mr. Luoma, it's my understanding the parties 11 have reached an agreement on how discovery should be 12 handled in this proceeding. 13 MR. LUOMA: That's correct, Your Honor. The 14 parties have come to a consensus that for discovery 15 prior to Staff and intervenor testimony being due it 16 will be 14-day due date best efforts, after the filing 17 of Staff and intervenor testimony it will be seven 18 calendar days best efforts, and after the filing of 19 rebuttal it will be four business days best efforts. 20 JUDGE FELDMAN: Okay. And that schedule is 21 acceptable to everybody? Speak now or, as they say, 22 forever hold your peace. 23 That will be the discovery schedule that we 24 set in this matter. Thank you all very much for your 25 efforts to reach agreement on that.
27 1 Is there anything further that anybody wants 2 to raise that we should take up at this prehearing 3 conference? 4 Let me just state that I know we've talked 5 about rebuttal, but I want to emphasize that the 6 rebuttal testimony is specifically to contradict or 7 refute evidence presented by another party, it's not an 8 opportunity to explain or further explain your 9 position. 10 And in terms of the motions to strike, there 11 has been a little confusion that has arisen in some 12 other cases. I want to make it clear that if you -- if 13 you have an objection to exhibits as well as to 14 testimony that you can formulate as part of your motion 15 to strike it would be appreciated if you could do that. 16 I know that we take up exhibits typically at the 17 conclusion of cross-examination. That is really to 18 handle unanticipated things that come up through the 19 testimony of the witness. For example -- and don't 20 laugh, I've seen it happen -- a witness may actually be 21 completely unfamiliar with the content of an exhibit 22 that they're sponsoring. There's usually perhaps some 23 explanation, but there are a variety of reasons why we 24 take up exhibits at the conclusion of 25 cross-examination. But if you have a belief that -- or
28 1 a basis to object to an exhibit, I think it would 2 accommodate the expeditious resolution of matters in 3 this case if you could include that in your motion to 4 strike. 5 And let me also say in that context that 6 arguments about relevance are not waived. If you agree 7 to allow evidence into the record, you may preserve 8 your arguments regarding relevance for breaks. 9 Does anybody have anything? Have I caused 10 confusion? Comments? Questions? Concerns? Anything 11 further at all before we adjourn? 12 Thank you enormously for your patience and 13 congeniality this morning. It's greatly appreciated. 14 We are adjourned. 15 (Record closed at 10:08 a.m.) 16 * * * * * 17 18 19 20 21 22 23 24 25
29 1 2 CERTIFICATE STATE OF MICHIGAN) ) 3 COUNTY OF INGHAM ) 4 I, Suzanne Duda, Certified Shorthand 5 Reporter, do hereby certify that I reported 6 stenographically the proceedings had in the 7 above-entitled matter, that being Case No. U-16794, 8 before Sharon L. Feldman, Administrative Law Judge, at 9 the Michigan Public Service Commission, 6545 Mercantile 10 Way, Lansing, Michigan, on Monday, July 18, 2011; and 11 do further certify that the foregoing transcript 12 constitutes a true and correct record of my stenotype 13 notes. 14 15 16 Suzanne Duda (CSR-3199) 17 Registered Professional Reporter Certified Realtime Reporter 18 Notary Public, Ingham County, Michigan My commission expires: May 6, 2013 19 20 Dated: July 22, 2011 21 22 23 24 25