In re Michigan Consolidated Gas Co.

304 Mich. App. 155
CourtMichigan Court of Appeals
DecidedFebruary 6, 2014
DocketDocket Nos. 312296 and 312305
StatusPublished
Cited by2 cases

This text of 304 Mich. App. 155 (In re Michigan Consolidated Gas Co.) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Michigan Consolidated Gas Co., 304 Mich. App. 155 (Mich. Ct. App. 2014).

Opinion

Per Curiam.

In these consolidated appeals, appellant Michigan Consolidated Gas Company appeals as of [158]*158right orders of the Michigan Public Service Commission (PSC) insofar as they repriced appellant’s purchases of exchange gas for the period of April 1, 2009, through March 31,2010, and April 1,2010, through September 27, 2010, in accordance with a rate adopted prospectively for such purchases on September 28, 2010. We vacate the orders below in those regards and remand this case to the PSC for further proceedings. There being no other issues on appeal, we affirm the orders below in all other regards.

I. FACTS

These appeals arise from gas cost reconciliation proceedings conducted pursuant to MCL 460.6h(12), which provides for periodic contested cases in order to “reconcile the revenues recorded pursuant to the gas cost recovery factor and the allowance for cost of gas included in the base rates established in the latest commission order for the gas utility with the amounts actually expensed and included in the cost of gas sold” and for doing so on the basis of the “reasonableness and prudence of expenses for which customers were charged if the issue could not have been considered adequately at a previously conducted gas supply and cost review.”

At issue is appellant’s purchases of exchange gas from the MichCon Gathering Company (MGAT), which gathers natural gas in the northern portion of the lower peninsula into its Antrim Expansion Project (AEP), then delivers the gas to appellant at a meter station in Kalkaska County. According to the parties, a perfect balance never exists between the gas delivered to the AEP and that delivered to appellant, and the difference between those two measured volumes of gas is referred to as “exchange gas.”

[159]*159Appellant has historically priced its exchange gas purchases at the “jurisdictional rate,” meaning the average cost of gas over the entire cost-recovery period. However, in a September 28, 2010 order in Case No. U-16146, which is the companion of the reconciliation cases on appeal in Docket No. 312305, the PSC announced that exchange gas purchases would thereafter be priced at appellant’s “city-gate index” rates, meaning the published monthly index prices for gas purchases at appellant’s delivery point. The PSC stated that this change would operate prospectively, and elaborated as follows:

Mich Con shall prospectively price its MGAT purchases using its monthly city-gate index price rather than the jurisdictional rate. By “prospective,” the Commission means all purchases occurring after the Commission issues its final order in this case. In the case where the gas was delivered before the Commission issues this order, but the costs are not approved until after the order, then Mich Con shall book the costs at the city-gate monthly index price.

In an order issued a few weeks later, in a case not part of the present appeal, the PSC again addressed the issue of prospective application of the city-gate index pricing for exchange gas, stating:

[T]he Staff.. . recommended that the city-gate index price be applied as a ceiling on a going forward basis. The Staff believed it unfair to Mich Con to apply the city-gate index in this case as the company had not received notice that the Commission might apply another benchmark for the MGAT purchases other than the jurisdictional rate. The ALJ agreed that the city-gate rate is the more appropriate benchmark for MGAT purchase^], but agreed with the Staff that it should be applied to MGAT purchases prospectively only. The ALJ did, however, recommend that the city-gate index rate apply to MGAT supply received but not booked with an associated cost in the forthcoming [gas cost recovery (GCR)] periods. The ALJ did find evidence that [160]*160Mich Con was aware of the potential risk of disallowance for MGAT pricing. [In re Application of Mich Con Gas Co, order of the Public Service Commission, entered October 14, 2010 (Case No. U-15451-R), p 9.]

Accordingly, the PSC did not use the new pricing for the latter case, but decreed that “Michigan Consolidated Gas Company shall apply the city-gate index price to all future Mich Con Gathering Company supply purchases.” Id. at 12.

A. CASE NO. U-15701-R: EXCHANGE GAS PRICING FOR APRIL 2009 TO MARCH 2010

A witness testifying on behalf of the Attorney General introduced an exhibit detailing events related to MGAT’s deliveries of gas to appellant, asserting that although appellant’s gas cost recovery plan for the 2009-2010 GCR period made no mention of MGAT, MGAT purchases did take place during that period. The witness testified that the purchase price recorded for gas received by appellant from MGAT during the 2009-2010 reconciliation period was the jurisdictional rate for that year, and that in each month of that period appellant recorded its receipt of the gas provided by MGAT as exchange gas received. Asked about changing the pricing method for this period from the jurisdictional rate to the city-gate index rate, the witness estimated that such a change would result in a reduction of appellant’s recoverable costs for exchange gas purchases of $3.3 million.

A gas supply analyst for appellant answered in the negative when asked whether appellant did purchase imbalance volumes from MGAT from April 2009 through March 2010, and elaborated, “MGAT imbalances were recorded as exchange gas and appropriately included in the cost of gas as done for all exchange gas [161]*161accounting” and that “the volumes have not been booked as a purchase at this time.” The witness explained that appellant was awaiting the PSC’s order in Case No. U-15451-R, because that order was expected to include an approved pricing methodology for exchange gas, and appellant intended to adhere to the PSC’s determination in that regard. The PSC issued that order on October 14, 2010, and there reiterated its determination in the September 28, 2010 order in this case that exchange gas would thereafter be priced at city-gate index rates. Similarly, another of appellant’s supply analysts testified that “MGAT imbalance volumes for the April 2009-March 2010 period have not been purchased at this time.” However, a third witness for appellant, in rebuttal testimony, stated that appellant’s “treatment of the MGAT costs included in this reconciliation is consistent with the Commission’s order [s],” having “priced its MGAT volumes at the Jurisdictional rate” on the ground that “[t]his purchase was made prior to the Commission’s orders and would not have been a ‘prospective’ purchase at the time of these orders.”

The administrative law judge, in the proposal for decision (PFD), opined that appellant “did not ‘purchase’ the volumes within the meaning of the Commission’s orders in Case Nos. U-16146 and U-15451-R, but instead deferred the ‘purchase’ of those volumes pending the Commission’s decisions in those cases,” and thus that “an adjustment to the prices included in the reconciliation for those volumes is appropriate.” The PFD recommended that the PSC adopt the proposal of the attorney general’s witness to disallow $3.3 million in gas recovery costs.

On December 6, 2011, the PSC issued an order in Case No. U-15701-R, repricing appellant’s purchases of [162]*162exchange gas incurred between April 1, 2009, and March 31, 2010, at city-gate index prices, thus reducing appellant’s gas supply cost recovery by $3.3 million.

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City of Holland v. Consumers Energy Company
308 Mich. App. 675 (Michigan Court of Appeals, 2015)

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Bluebook (online)
304 Mich. App. 155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-michigan-consolidated-gas-co-michctapp-2014.