A CMS Energy Company August 24, 2017 Ms. Kavita Kale Executive Secretary Michigan Public Service Commission 7109 West Saginaw Highway Post Office Box 30221 Lansing, MI 48909 General Offices: LEGAL DEPARTMENT One Energy Plaza Jackson, MI 49201 Tel: Fax: (517) 788-0550 (517) 768-3644 CATHERINE M REYNOLDS Senior Vice President and General Counsel *Washington Office: 1730 Rhode Island Ave. N.W. Tel: (202) 778-3340 MELISSA M GLEESPEN Suite 1007 Vice President, Corporate Washington, DC 20036 Fax: (202) 778-3355 Secretary and Chief Compliance Officer Writer s Direct Dial Number: (517) 788-0835 Writer s E-mail Address: bret.totoraitis@cmsenergy.com SHAUN M JOHNSON Vice President and Deputy General Counsel H Richard Chambers 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 James D W Roush Scott J Sinkwitts Adam C Smith Theresa A G Staley Janae M Thayer Bret A Totoraitis Anne M Uitvlugt Aaron L Vorce Attorney Re: MPSC Case No. U-18322 In the matter of the application of CONSUMERS ENERGY COMPANY for authority to increase its rates for the generation and distribution of electricity and for other relief. Dear Ms. Kale: Enclosed for electronic filing in the above-captioned case, please find Consumers Energy Company s Response Opposing The Residential Customer Group s Motion To Allow The Filing Of The Testimony And Exhibits Of William S. Bathgate Out Of Time. This is a paperless filing and is therefore being filed only in a PDF format. I have enclosed a Proof of Service showing electronic service upon the parties. Sincerely, Bret A. Totoraitis cc: Hon. Sharon L. Feldman, ALJ Attachment 1 to Proof of Service fl0817-2-225
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 ) Case No. U-18322 the generation and distribution of ) electricity and for other relief. ) ) CONSUMERS ENERGY COMPANY S RESPONSE OPPOSING THE RESIDENTIAL CUSTOMER GROUP S MOTION TO ALLOW THE FILING OF THE TESTIMONY AND EXHIBITS OF WILLIAM S. BATHGATE OUT OF TIME 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 792.10432, Consumers Energy Company ( Consumers Energy or the Company ) files this Response Opposing the Residential Customer Group s ( RCG ) Motion for the Filing of the Testimony and Exhibits of William S. Bathgate Out of Time ( Motion ) filed on August 15, 2017, and states as follows: I. ARGUMENT On August 15, 2017, RCG filed its Motion asking the Administrative Law Judge ( ALJ ) to permit the late filing of testimony and exhibits sponsored by its witness, Mr. Bathgate. Mr. Bathgate s proposed testimony pertains generally to Consumers Energy s utilization of Advanced Metering Infrastructure ( AMI ) meters as the Company s standard metering technology. The filing deadline for intervenors testimony and exhibits, as established by the ALJ at the prehearing conference on May 9, 2017, was August 10, 2017. RCG s attorney was not unaware of the filing deadline and filed testimony of one witness on a timely basis. At no time prior to the late filing, which Consumers Energy received at re0817-1-225 1
approximately 5:20 PM on August 15, 2017, five days after the due date, did counsel for RCG notify counsel for Consumers Energy that testimony would be filed late, seek agreement from counsel for a late filing, or file a motion seeking permission for a late filing. Rule 421 of the Rules of Practice and Procedure before the Commission states, in relevant part, All rulings made at [the prehearing conference] shall be binding on all parties to the proceeding unless the rulings are, for good cause, subsequently modified or reversed by the presiding officer or the commission. R 792.10421 (emphasis added). RCG has failed to demonstrate good cause for modifying the schedule set at the prehearing conference in this case to permit its late-filed testimony and exhibits. Furthermore, RCG s late filing, if accepted, will be prejudicial to Consumers Energy and its ability to fairly and adequately respond to the late-filed testimony and exhibits given the tight time schedule for rebuttal, discovery, the significant amount of testimony and exhibits filed by the MPSC Staff ( Staff ) and other intervenors (which was timely filed), and the subject matter of the late-filed offered testimony and exhibits. Therefore, RCG s Motion should be denied. RCG s Motion offers two reasons for the untimeliness of its filing, both of which are general and non-specific and both of which fail to provide good cause for RCG s late filing. First, RCG claims that its late filing has become necessary due to Counsels extensive caseload of state and federal agency and court cases, and hearings, and conflicting case briefing and other case preparation deadlines. Motion, paragraph 1. Second, RCG claims that its witness has been engaged in his own separate employment and scheduled commitments which has made it necessary to file this testimony and exhibits out of time. Motion, paragraph 2. However, RCG does not provide any details regarding the nature or timing of the conflicts such that it is possible re0817-1-225 2
to evaluate whether good cause exists to excuse the untimeliness of its response. Notably, RCG did not append any affidavit from its proposed witness supporting its Motion. Unspecified assertions of scheduling conflicts, where the deadline for filing has already been missed by five days, should not be treated as sufficient to meet a party s requirement to show good cause for its delinquency. Without specific detail regarding the timing and nature of the conflict, the claim that a party was under pressure from other commitments is equally as susceptible to the conclusion that the party should have sought relief in the other cases as it is to the conclusion that the party should now get relief in this case. RCG s perfunctory assertions that its legal counsel and witness were burdened with other commitments do not amount to good cause. RCG s claim that its legal counsel was too busy with other work to timely file Mr. Bathgate s testimony in this case is belied by the fact that RCG did timely file the testimony and exhibits of another witness on August 10, 2017. RCG and its witness had the same amount of time as every other party and witness. The testimonies and exhibits of 22 Staff and intervenor witnesses were filed by the August 10, 2017 deadline established by the ALJ at the prehearing. RCG was on notice of the due date for its prefiled testimony and exhibits in this proceeding for fully three months prior to the deadline. The early establishment of a schedule at the prehearing conference for all phases of this year-long proceeding operates, in part, to allow the parties to plan, prioritize, and order their work such that each required filing can be, and is, completed on or before the prescribed deadline. Each party was given the opportunity at the prehearing to review their existing commitments or conflicts, including witness conflicts, and propose alternative dates for any of the scheduled events. 1 TR 12-17. Although counsel for RCG was in attendance at the prehearing conference, RCG did not identify any potential scheduling concerns for its legal counsel or its witness and did not object to the schedule re0817-1-225 3
established by the ALJ. 1 TR 17. RCG never contacted the Company in this case to express that it had any new scheduling conflicts that arose after the prehearing conference or to seek any adjustment to the schedule. RCG claims in its Motion that permitting its late filing in this case should not prejudice any other party to this proceeding.... Motion, paragraph 3. On the contrary, Consumers Energy submits that the Company will be unduly prejudiced by RCG s late-filed testimony if it is permitted. The schedule established by the ALJ in this case provides approximately four weeks for the Company and other parties to respond to intervenor filings with rebuttal testimony. RCG s proposed filing was nearly a week late. Substantial work had already begun on rebuttal testimony by the time the filing was made. In addition, RCG is not the only party that Consumers Energy must respond to within that four-week period. Nearly all of the testimony filed on August 10, 2017 in this case is directed against some aspect of Consumers Energy s Application and request for relief in this case. Because of the short timeframe and the need to respond to so much material from so many different parties, Consumers Energy submits that the rebuttal schedule is the most crucial and significant time allowance in the case from the Company s perspective. Any loss of time during this phase of the case is more unfairly prejudicial to the Company than a loss of time during other phases of the case. In addition, Mr. Bathgate s proposed testimony and exhibits are very technical in nature, presenting a number of issues that are not typically discussed or considered in a rate case. The nature of the testimony will require the Company to perform significant analysis of its many suspicious claims in a very short period of time, made even shorter because of its untimeliness. Even if the Company is able to marshal rebuttal testimony responding to Mr. Bathgate s claims in the reduced timeframe now available, it will have been deprived of additional time that re0817-1-225 4
otherwise would have been available to ensure that the rebuttal includes the most complete and thorough response available. Furthermore, the Company submits that most, if not all, of the proposed testimony addresses issues and arguments outside of those raised in Consumers Energy s direct case (or for that matter addressed by any other party in this case). Finally, the Company submits that any filing made after the deadlines imposed on all of the other parties in a proceeding affords the late-filing party the unfair advantage that it may preview and analyze its opponents filings before committing to the final version of its own work. In essence, a late filing gives the offending party an extra chance to respond to its opponents, instead of just the one chance that the other parties get. Unless there is good cause to excuse a late filing, the late filing should be presumptively treated as prejudicial for that reason alone. Here, RCG has not demonstrated good cause. Its perfunctory claim of scheduling conflicts does not provide sufficient detail to evaluate its merits and is undermined by RCG s timely filing of another witness s testimony and exhibits. Because RCG has failed to demonstrate good cause, and because its late filing is unduly prejudicial to Consumers Energy, RCG s Motion should be denied. re0817-1-225 5
II. REQUEST FOR RELIEF WHEREFORE, Consumers Energy Company respectfully requests the Administrative Law Judge and the Michigan Public Service Commission to deny the Residential Customer Group s August 15, 2017 Motion for the Filing of the Testimony and Exhibits of William S. Bathgate Out of Time. Respectfully submitted, CONSUMERS ENERGY COMPANY Dated: August 24, 2017 By: Bret A. Totoraitis (P72654) One Energy Plaza Jackson, Michigan 49201 Attorney for Consumers Energy Company Telephone: (517) 788-0835 re0817-1-225 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 ) Case No. U-18322 the generation and distribution of ) electricity 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 August 24, 2017, she served an electronic copy of Consumers Energy Company s Response Opposing The Residential Customer Group s Motion To Allow The Filing Of The Testimony And Exhibits Of William S. Bathgate Out Of Time upon the persons listed in Attachment 1 hereto, at the e-mail addresses listed therein. She further states that she also served a hard copy of the same document to the Hon. Sharon L. Feldman 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 24 th day of August, 2017. Tara L. Hilliard, Notary Public State of Michigan, County of Jackson My Commission Expires: 09/12/20 Acting in the County of Jackson ps0817-2-225