STATE OF MICHIGAN BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION In the matter of the application of DTE ELECTRIC COMPANY for approval of Certificates of Necessity pursuant to Case No. U-18419 MCL 460.6s, as amended, in connection (e-file paperless) with the addition of a natural gas combined cycle generating facility to its generation fleet and for related accounting and ratemaking authorizations. / THE MICHIGAN PUBLIC SERVICE COMMISSION STAFF S MOTION TO REQUEST A SCHEDULE EXTENSION BEYOND 270 DAYS Michigan Public Service Commission Staff, files this motion for the Administrative Law Judge (ALJ) to extend the schedule in this matter, pursuant to Rule 105 of the Michigan Public Service Commission s (Commission) Rules of Practice and Procedure, Mich Admin Code; 792.10105. In support of its motion, Staff states as follows: 1. On July 31, 2017, DTE Electric Company filed its Application seeking a Commission determination for approval of Certificates of Necessity (CON) pursuant to MCL 460.6s, as amended, in connection with the addition of a natural gas combined cycle generating facility to its generation fleet and for related accounting and ratemaking authorizations. The request for approval entails approximately a billion dollars in estimated costs, subject to a 150-day updated cost filing, which is expected to be detailed and include more than just cost updates, and falls less than a week before the Christmas holiday.
2. At the prehearing conference on September 7, 2017, before the ALJ, the parties submitted a consensus schedule for the proceedings. The original schedule contemplated Staff testimony to be filed November 30, 2017, and the 150- day cost update be filed by the Company on December 19, 2017, with rebuttal testimony due January 5, 2018, and cross examination on January 10-12 th and 16 th, as well as briefing to be concluded on February 5, 2018. Discovery has proceeded with a 7 business day turn-around until the filing of Staff and Intervenor testimony, which has been a slower than average turn-around time, compounded by the holidays, and 5 business days thereafter. Not to mention, there is a high volume of complex discovery in this case. 3. Since the prehearing, the schedule in this case has been modified and extended by 2 weeks, for Staff and Intervenor testimony to be filed on December 15, 2017, to allow for modeling to take place using the Company s licenses for those parties that are trained in the use of those licenses and can afford to and have the know-how to run alternative modeling. 4. Staff has conducted extensive discovery in this matter. The Staff has determined through discovery that the Company s modeling inputs and assumptions are not up-to-date or complete when using the inputs cherry-picked by the Company. Staff issued discovery request 15 asking the Company to run its numbers to make the modeling illustrative of the best information available. Staff has not yet received a response to this discovery, which is due on Monday, December 4, 2017. 2
5. Staff is also waiting for responses to discovery regarding the bidding process, which DTE indicates involves proprietary information. Staff requested make and model information with respect to the plant that it proposes to build, and whether it has been used in the past. In response, the Company indicated it cannot provide that information, stating at STDE-13.3: The Company is currently in negotiations with the Original Equipment Manufacturer of the advanced class gas turbine and disclosure of this information at this would compromise the Company s ability to maintain a competitive negotiating position for ratepayers. Once negotiations are completed and contract(s) are executed, the Company is willing to fully answer this question. Discovery has been slowed down by the need to acquire modeling and bid information, which has at each turn involved proprietary restraints. Critical discovery is still not yet resolved, and will not be resolved until after the 150-day update, and needs to be explored in this matter for the ALJ and Commission to be able to properly assess this case. Staff anticipates addressing MCL 460.s4(c) and (d) regarding the costs involved in the power purchase agreement, and has insufficient information to do so before the 150-day filing. 6. Staff, therefore, needs additional time to make its case in initial testimony to address MCL 460.6s(11)(f), as An analysis of the availability and costs of other electric resources that could defer, displace, or partially displace the proposed generation facility.. Demand response and energy waste reduction mechanisms if put in place could partially displace or defer the facility in question, and Staff needs time to prepare testimony on these issues. Yet, Staff does not even 3
know at this juncture what generation facility make and model to compare alternatives to. 7. As it draws near, Staff is convinced that it is prudent in this case to allow for Staff and Intervenors to file its testimony after the 150-day update to be filed December 19, 2017. The other filing dates would necessarily need to move to accommodate the schedule change. Staff believes it is in the public interest and the parties interest to extend the schedule beyond the 270 day period, and the statute at MCL 460.6s(4) itself provides no penalty for doing so. The statute provides for a fully contested case, and in this case, moving the schedule has become necessary. Staff proposes moving all dates besides the 150-day update by 4 weeks. Where there is no penalty provided, and where it is in the interest of justice, the ALJ and Commission has elected to go beyond statutory directions on an as needed basis for a limited period. In re McCready 2/27/2015 MPSC Opinion and Order, p 3. 1 8. This is a massive case, in size and import, with many nuances, and the first CON case under the new statute at Act 341 of 2016, which is worthy of thoroughly examining. It was filed before guidelines regarding filing could be fully developed, and there is information that is needed in this case that has not been provided. 1 http://www.michigan.gov/documents/mpsc/u-17652_2-27-15_561352_7.pdf 4
9. Further, no party would be prejudiced by the ALJ extending the schedule 4 weeks beyond the 270 days proposed for an order in this case. Extending the schedule will allow the ALJ and Commission to have the full evidentiary record at its disposal and allow adequate time for decisions in this matter. Each party will have a full, fair, and complete opportunity to present any relevant and material legal and factual arguments in their briefs, reply briefs, and at cross-examination. 10. The Company may opine that cross-examination is an adequate forum to address the 150-day update. The Company has not revealed and it is impossible for Staff to say how extensive the 150-day update will be, but it is clear so far that information is being withheld that Staff needs to evaluate the case. Between December 19 th and rebuttal on January 5th, over the holiday period, Staff does not have time to review the 150-day update, conduct discovery with respect to the numbers and/or request for proposal (RFP) process, and to make a meaningful assessment of that update under the current schedule. To illustrate the importance of the 150-day update and RFP, MCL 460.6(s)(4)(c) states: The commission shall find that the cost is reasonable if, in the construction or investment in a new or existing facility, to the extent it is commercially practicable, the estimated costs are the result of competitively bid engineering, procurement, and construction contracts, or in a power purchase agreement, the cost is the result of a competitive solicitation. Cross-examination would not provide an appropriate contested forum for reviewing the 150-day update and RFP, without appropriate time for Staff to review and take a position on the matters contained in that update. 5
THEREFORE, based on the foregoing, and in the interests of justice and a full and fair review of this matter, Staff requests the ALJ to grant its motion to extend the schedule in this matter by extending all dates besides the 150-day update by 4 weeks. Respectfully submitted, MICHIGAN PUBLIC SERVICE COMMISSION STAFF Dated: December 1, 2017 18419/Motion to Extend Schedule Heather M.S. Durian (P67587) Amit T. Singh (P75492) Assistant Attorneys General Public Service Division 7109 W. Saginaw Hwy., 3rd Floor Lansing, MI 48917 Telephone: (517) 284-8140 6
STATE OF MICHIGAN BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION In the matter of the application of DTE ELECTRIC COMPANY for approval of Certificates of Necessity pursuant to Case No. U-18419 MCL 460.6s, as amended, in connection (e-file paperless) with the addition of a natural gas combined cycle generating facility to its generation fleet and for related accounting and ratemaking authorizations. / STATE OF MICHIGAN ) ) ss COUNTY OF EATON ) PROOF OF SERVICE CORINNA C. SWAFFORD, being first duly sworn, deposes and says that on December 1, 2017, she served a true copy of the Michigan Public Service Commission Staff s Motion to Request a Schedule Extension Beyond 270 Days upon the following parties via e-mail only: DTE Electric Company David S. Maquera Michael J. Solo, Jr. DTE Energy One Energy Plaza, 688 WCB Detroit, MI 48226 david.maquera@dteenergy.com michael.solo@dteenergy.com mpscfilings@dteenergy.com International Transmission Company d/b/a ITCTransmission Stephen J. Videto Amy C. Monopoli ITC Holdings Corp. 27175 Energy Way Novi, MI 48377 amonopoli@itctransco.com svideto@itctransco.com
Michigan Environmental Council Christopher M. Bzdok Tracy Jane Andrews Lydia Barbash-Riley Olson, Bzdok & Howard 420 E. Front St. Traverse City, MI 49686 chris@envlaw.com tjandrew@envlaw.com lydia@envlaw.com Kimberly Flynn, Legal Ass t kimberly@envlaw.com Marcia Randazzo, Legal Ass t marcia@envlaw.com Association of Businesses Advocating Tariff Robert A.W. Strong Michael J. Pattwell Sean P. Gallagher Clark Hill PLC 151 S. Old Woodward Ave., Ste. 200 Birmingham, MI 48009 rstrong@clarkhill.com mpattwell@clarkhill.com sgallagher@clarkhill.com Stephen A. Campbell Clark Hill PLC 500 Woodward Avenue, Ste 3500 Detroit, MI 48226 scampbell@clarkhill.com Environmental Law & Policy Center, Vote Solar, Ecology Center, Solar Energy Industries Association, and Union of Concerned Scientists Margrethe K. Kearney Environmental Law & Policy Center 1514 Wealthy St. SE, Suite 256 Grand Rapids, MI 49506 mkearney@elpc.org Jean-Luc Kreitner Environmental Law & Policy center 35 E. Wacker Drive, Suite 1600 Chicago, IL 60601 jkreitner@elpc.org Midland Cogeneration Venture Limited Partnership Richard J. Aaron Kyle M. Asher Jason Hanselman Dykema Gossett Capitol View 201 Townsend St., Ste. 900 Lansing, MI 48933 raaron@dykema.com kasher@dykema.com jhanselman@dykema.com Kristin Field, Legal Assistant kfield@elpc.org 2
Attorney General Bill Schuette John A. Janiszewski Celeste R. Gill Assistant Attorney General Environment, Natural Resources and Agriculture Div. G. Mennen Williams Bldg., 6 th Floor 525 W. Ottawa St.; P.O. Box 30755 Lansing, MI 48909 janiszewskij2@michigan.gov gillc1@michigan.gov ag-enra-spec-lit@michigan.gov Sierra Club Cassandra R. McCrae Earthjustice 16174 John F. Kennedy Blvd. Suite 1130 Philadelphia, PA 19103 cmccrae@earthjustice.org Energy Michigan, Inc., Michigan Energy Innovation Business Council, and City of Ann Arbor Timothy J. Lundgren Laura A. Chappelle Varnum Law The Victor Center 201 N. Washington Sq., Ste. 910 Lansing, MI 48933-1323 tjlundgren@varnumlaw.com lachappelle@varnumlaw.com Toni L. Newell Varnum Law 333 Bridge St., N.W. Grand Rapids, MI 49504 tlnewell@varnumlaw.com CORINNA C. SWAFFORD Subscribed and sworn to before me this 1st day of December, 2017. Pamela A. Pung, Notary Public State of Michigan, County of Clinton Acting in County of Eaton My Commission Expires: 05/07/2018 3