Points of Procedure

ALJ Denies FERC Trial Staff’s Last Minute Request to Change Exhibits

Mark Reishus
October 10, 2018 at 08:07:01 ET
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On Oct. 9, 2018, Steven L. Sterner, the FERC Administrative Law Judge (ALJ) presiding over a proceeding involving an executed cost-of-service agreement among Constellation Mystic Power LLC (Mystic), Exelon Generation Co. LLC and ISO New England Inc., denied FERC Trial Staff’s oral motion to make changes to two exhibits.

FERC Trial Staff made the motion at hearing on Oct. 8, 2018, at the outset of calling witness Robert Keyton to the stand.

Mystic opposed Trial Staff’s motion.

Keyton, an Energy Industry Analyst in the Technical Division of FERC’s Office of Administrative Litigation, testified on the appropriate rate of return on common equity, long-term debt cost rate, capital structure, and after-tax weighted average cost of capital for the agreement.

The ALJ found that: “Trial Staff is seeking to make voluminous substantive changes regarding a highly contentious issue”; “accepting these changes is prejudicial to Mystic because they were presented at the last minute, denying opposing counsel the opportunity to review these changes or conduct any discovery”; and “allowing Trial Staff to make the proposed changes at this stage in the hearing would violate Mystic’s right to due process — including the right to conduct effective cross examination.”

Sterner concluded that “good cause does not exist to allow Trial Staff to file their proposed corrected versions of Exhibits S-0009 and S-0012.”

Exhibit S-0009 is Keyton’s prepared direct and answering testimony; Exhibit S-0012 is Keyton’s capital structure analysis.

See ¶505-05: Rights of Participants to Present Evidence and ¶506-30: Cross-Examination for more summaries of orders discussing the right to conduct effective cross examination, and ¶508-10: Exhibits — In General for more summaries of orders discussing procedures pertaining to exhibits.

Constellation Mystic Power LLC, Docket No. ER18-1639-000 “Order Denying Motion of Commission Trial Staff for Leave to Make Changes to Exhibits S-0009 and S-0012” (Oct. 9, 2018) (J. Sterner) (Unreported).