February 23, 2012 - Bench Minute Meetings

              1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
1
BEFORE THE
ILLINOIS COMMERCE COMMISSION
BENCH SESSION
(PUBLIC UTILITY)
Springfield, Illinois
Thursday, February 23, 2012
Met, pursuant to notice, at 10:30 a.m.
in the Audiovisual Conference Room, Second Floor,
Leland Building, 527 East Capitol Avenue,
Springfield, Illinois.
PRESENT:
MR. DOUGLAS P. SCOTT, Chairman
MS. LULA M. FORD, Commissioner
(Via audiovisual teleconference)
MS. ERIN M. O'CONNELL-DIAZ, Commissioner
(Via audiovisual teleconference)
MR. SHERMAN J. ELLIOTT, Commissioner
MR. JOHN T. COLGAN, Commissioner
SULLIVAN REPORTING COMPANY, by
Carla J. Boehl, Reporter
CSR #084-002710
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
2
PROCEEDINGS
CHAIRMAN SCOTT: Pursuant to the provisions of
Illinois Open Meetings Act, I now convene a regularly
scheduled Bench Session of the Illinois Commerce
Commission. With me in Springfield are Commissioners
Elliott and Colgan and with us in Chicago are
Commissioners Ford and O'Connell-Diaz. I am Chairman
Scott. We have a quorum.
Before moving into the agenda,
according to Section 1700.10 of Title II of the
Administrative Code, this is the time we allow
members of the public to address the Commission.
Members of the public wishing to address the
Commission must notify the Chief Clerk's Office at
least 24 hours prior to Commission meetings.
According to the Chief Clerk's Office we have no
requests to speak at today's Bench Session.
(The Transportation
portion of the proceedings
was held at this time and
is contained in a separate
transcript.)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
3
CHAIRMAN SCOTT: Moving on to Public Utilities,
we will begin today with approval of minutes from
prior Commission meetings. Up first are minutes of
the January 25 Bench Session. I understand
amendments have been forwarded.
Is there a motion to amend the
minutes?
COMMISSIONER ELLIOTT: So moved.
CHAIRMAN SCOTT: Is there a second?
COMMISSIONER COLGAN: Second.
CHAIRMAN SCOTT: It's been moved and seconded.
All in favor say aye.
COMMISSIONERS: Aye.
CHAIRMAN SCOTT: Any opposed?
(No response.)
The vote is five to nothing, and the
amendments are adopted.
Is there now a motion to approve the
January 25 minutes as amended?
COMMISSIONER ELLIOTT: So moved.
CHAIRMAN SCOTT: Is there a second?
COMMISSIONER COLGAN: Second.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
4
CHAIRMAN SCOTT: It's been moved and seconded.
All in favor say aye.
COMMISSIONERS: Aye.
CHAIRMAN SCOTT: Any opposed?
(No response.)
The vote is five to nothing, and the
January 25 Bench Session minutes as amended are
approved.
Next up are minutes from our January
31 Regular Open Meeting. I understand amendments
have been forwarded. Is there a motion to amend the
minutes?
COMMISSIONER ELLIOTT: So moved.
CHAIRMAN SCOTT: Is there a second?
COMMISSIONER COLGAN: Second.
CHAIRMAN SCOTT: It's been moved and seconded.
All in favor say aye.
COMMISSIONERS: Aye.
CHAIRMAN SCOTT: Any opposed?
(No response.)
The vote is five to nothing, and the
amendments are adopted.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
5
Is there now a motion to approve the
January 31 minutes as amended?
COMMISSIONER COLGAN: So moved.
CHAIRMAN SCOTT: Is there a second?
COMMISSIONER ELLIOTT: Second.
CHAIRMAN SCOTT: It's been moved and seconded.
All in favor say aye.
COMMISSIONERS: Aye.
CHAIRMAN SCOTT: Any opposed?
(No response.)
The vote is five to nothing, and the
January 31 Regular Open Meeting minutes as amended
are approved.
Turning next to the Electric portion
of today's agenda, Item E-1 (12-0132) concerns the
initiation of a proceeding for the evaluation of
MidAmerican's energy efficiency programs pursuant to
Section 8-408(d) of the Public Utilities Act. Staff
recommends entry of an Order initiating the
proceeding.
Is there any discussion?
(No response.)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
6
Is there a motion to enter the Order?
COMMISSIONER ELLIOTT: So moved.
CHAIRMAN SCOTT: Is there a second?
COMMISSIONER COLGAN: Second.
CHAIRMAN SCOTT: It's been moved and seconded.
All in favor say aye.
COMMISSIONERS: Aye.
CHAIRMAN SCOTT: Any opposed?
(No response.)
The vote is five to nothing, and the
Order is entered.
We will use this five to nothing vote
for the remainder of the Public Utility agenda unless
otherwise noted.
Item E-2 concerns a filing by
MidAmerican seeking changes related to its
Interruptible Service and Curtailment Service riders.
Staff recommends that the Commission grant the
company's request by not suspending the filing.
Is there any discussion?
(No response.)
Any objections?
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
7
(No response.)
Hearing none, the filing will not be
suspended.
Item E-3 concerns a filing by ComEd
seeking revisions to its Rider UF regarding supply
base uncollectible cost factors. Staff recommends
that the Commission grant the company's request by
not suspending the filing.
Is there any discussion?
(No response.)
Any objections?
(No response.)
Hearing none, the filing will not be
suspended.
Item E-4 is Docket Number 07-0566.
This is ComEd's 2007 rate case on remand from the
Appellate Court. ALJ Haynes recommends entry of an
Order on Remand finding that the Commission does not
have authority to order a refund consistent with the
Appellate Court's opinion.
I have circulated some revisions on
this item. My revisions adopt the position of Staff
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
8
and other Intervenors in concluding that the
Appellate Court's decision does vest the Commission
with authority to order a refund consistent with the
Commission's recalculation of rate base. The
revisions conclude that the Appellate Court's
decision to remand the matter to the Commission for
"further proceedings consistent with its opinion"
envision the Commission giving actual effect to the
Appellate Court's opinion in accordance with the
recalculation, thus resulting in a refund of $36.7
million previously charged to consumers under
unlawful rates.
I move for adoption of these
revisions.
COMMISSIONER ELLIOTT: Second.
CHAIRMAN SCOTT: It's been moved and seconded.
Are there further discussions on these revisions?
COMMISSIONER O'CONNELL-DIAZ: Chairman?
CHAIRMAN SCOTT: Yes.
COMMISSIONER O'CONNELL-DIAZ: Well, I guess you
are going to vote on your revisions, but I just have
a couple comments.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
9
CHAIRMAN SCOTT: Sure.
COMMISSIONER O'CONNELL-DIAZ: First of all, I
would like to thank Judge Haynes for, was it back in
November, we got the Order that we have before us and
I think it was very well thought out, a very complete
Order. And it wasn't until this Tuesday at about
four o'clock that I saw the revisions that the
Chairman has put before us, and they are different
obviously than what Judge Haynes has put before us.
We have also -- I have also had the
Office of General Counsel look at this issue. I
think it is very important for this body to act
within its authority. In fact, I think it is quite
telling when we have a resolution from the General
Assembly that's telling us that we are a body that is
an administrative agency that was created by statutes
and we kind of need to stay within our boundaries.
So with that I think that, you know, I
appreciate the work that your office has done in
regard to these revisions. I think, as we have been
advised by counsel, that -- he didn't use the term
"slippery slope" but that there is two ways of
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
10
looking at this issue.
It is my understanding the majority is
in favor of going with your revisions. I find it
problematic, but I do in the spirit of collegiality
go along with the majority. But I think that we need
to be very careful when we are kind of going out, I
think, somewhat on a limb and implying words that the
Appellate Court did not use in their remand. And I
think, as Judge Haynes said, that that could be
thought of as the easier way to go as opposed to the
more difficult way.
And I do understand that the
Commission is a body of limited jurisdiction, and so
for me it is a tough call and there is murky waters
on both sides. And I appreciate that the Chairman's
office worked on this, and it is just a difficult
issue.
Thank you.
CHAIRMAN SCOTT: Thank you, Commissioner
O'Connell-Diaz.
Further discussion? Commissioner
Colgan?
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
11
COMMISSIONER COLGAN: I fully understand your
comments, Commissioner, and I think that this is a
decision that caused some, you know, deliberation in
terms of which way this should go. And I came down
on the side of I didn't think that the argument that
we didn't have the authority was convincing, and
decided to move forward on the basis that it appears
to me that we do have the authority. If it is not
actually stated, it is, I think, clearly implied that
the Court intended for us to do this. So that's my
comment.
COMMISSIONER ELLIOTT: Yeah, I would agree. I
think -- you know, I would like to thank John
Kelliher for getting a quick turnaround of a very
informative memo sort of outlying the murky waters
that we are in. But I thought that memo was helpful
as well.
COMMISSIONER FORD: I certainly try to think
that I can analyze, synthesize and evaluate
information. And I always when I was a principal
said I like to err on the side of the child. And
this time if I err, it would be on the side of the
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
12
ratepayers. So I think that I am in the right field
this time.
COMMISSIONER O'CONNELL-DIAZ: Well, and I think
there is solace in that if we are not doing the right
thing, that there would be an appeal process that
will go forward. So we will get knocked back into
our spot if we have overstepped our boundaries.
CHAIRMAN SCOTT: The revisions have been moved
and seconded. Is there further discussion?
(No response.)
All in favor say aye.
COMMISSIONERS: Aye.
CHAIRMAN SCOTT: Any opposed?
(No response.)
The vote is five to nothing, and the
revisions are adopted.
Is there further discussion on this
matter?
(No response.)
I will move to adopt the Order on
Remand as revised. Is there a second?
COMMISSIONER ELLIOTT: Second.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
13
CHAIRMAN SCOTT: It's been moved and seconded.
All in favor say aye.
COMMISSIONERS: Aye.
CHAIRMAN SCOTT: Any opposed?
(No response.)
The vote is five to nothing, and the
Order on Remand as revised is entered.
And I would like to join the other
Commissioners who have already spoken on this but,
first of all, I thank Judge Haynes for her work on
this. She put a lot of work on this, and especially
for her patience and the parties' patience. As
Commissioner O'Connell-Diaz pointed out, it has been
quite awhile since the Order was entered and it's
just been in front of us for quite a while, and I
appreciate her patience and the parties' patience.
And also Attorney Kelliher for, as Commissioner
Elliott mentioned, a very quick turnaround on those
issues. So I really appreciate John's work on that
as well.
Item E-5 is Docket Number 11-0144.
This is Peter Fletcher's complaint against ComEd.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
14
This item will be held for disposition at a future
Commission proceeding.
Item E-6 is Docket Number 11-0438.
This is Carmen Rosa Pellarieta's complaint against
ComEd. The parties have apparently settled their
differences and brought a Joint Motion to Dismiss
which ALJ Benn recommends we grant.
Is there any discussion?
(No response.)
Any objections?
(No response.)
Hearing none, the Motion to Dismiss is
granted.
Item E-7 is Docket Number 11-0609.
This is ComEd's Rider UF uncollectibles cost
reconciliation case. ALJ Wallace recommends entry of
an Order approving the reconciliation.
Is there any discussion?
(No response.)
Any objections?
(No response.)
Hearing none, the Order is entered.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
15
Item E-8 is Docket Number 12-0031.
This is Ameren's petition for the approval of the
purchase and sale of property in Princeton. The
company has moved to withdraw its petition, and ALJ
Yoder recommends granting the withdrawal.
Is there any discussion?
(No response.)
Any objections?
(No response.)
Hearing none, the petition is
withdrawn.
Item E-9 is Docket Number 12-0058.
This is Starion Energy PA's application for a
Certificate of Service Authority to operate as an
alternative retail electric supplier. ALJ Yoder
recommends entry of an Order granting the requested
certificate.
Is there any discussion?
(No response.)
Any objections?
(No response.)
Hearing none, the Order is entered.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
16
Item E-10 is Docket Number 12-0059.
This is ComEd's application for authorization to
issue $1.319 billion in securities for purposes of
refinancing. ALJ Kimbrel recommends entry of an
Order granting the requested relief.
Is there any discussion?
(No response.)
Any objections?
(No response.)
Hearing none, the Order is entered.
Item E-11 is Docket Number 12-0080.
This is Ameren's petition seeking authorization for
the construction of a transmission line in Champaign
County. Before us today is a Motion to Extend the
deadline for Commission action in this case, and ALJ
Von Qualen recommends granting the motion.
Is there any discussion?
(No response.)
Any objections?
(No response.)
Hearing none, the Motion to Extend the
deadline is granted.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
17
Turning now to Natural Gas, Item G-1
is Docket Number 11-0604. This is Nicor's
reconciliation proceeding for revenues collected
under its Rider 26 regarding previous years'
uncollectible costs. ALJ Wallace recommends entry of
an Order approving the reconciliation.
Is there any discussion?
(No response.)
Any objections?
(No response.)
Hearing none, the Order is entered.
Item G-2 is Docket Number 11-0615.
This is April Hudson's complaint against Nicor. ALJ
Teague recommends entry of an Order dismissing this
matter without prejudice for want of prosecution.
Is there any discussion?
(No response.)
Any objections?
(No response.)
Hearing none, the Order is entered.
Items G-3 and G-4 (12-0074, 12-0081)
can be taken together. These items are petitions for
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
18
confidential and/or proprietary treatment of the
petitioners' AGS compliance reports. In each case
ALJ Albers recommends entry of an Order granting the
requested treatment.
Is there any discussion?
(No response.)
Any objections?
(No response.)
Hearing none, the Orders are entered.
On to Telecommunications, Items T-1
and T-2 can be taken together. These items are
filings by Frontier affiliates seeking tariff changes
introducing new bundles for business and residential
customers. In each case Staff recommends granting
the company's request by not suspending the filing.
Is there any discussion?
(No response.)
Any objections?
(No response.)
Hearing none, the filings will not be
suspended.
Item T-3 is Docket Number 11-0712.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
19
This is Madison River Long Distance Solution's
Petition to Withdraw Certificates of Service
Authority previously issued to it in Docket Number
10-0121. ALJ Baker recommends entry of an Order
granting withdrawal.
Is there any discussion?
(No response.)
Any objections?
(No response.)
Hearing none, the Order is entered.
Item T-4 is Docket Number 11-0777.
This is INdigitel Telecom's application for a
Certificate of Service Authority under Sections
13-403 through 13-405 of the Public Utilities Act.
ALJ Riley recommends entry of an Order granting the
requested certificates.
Is there any discussion?
(No response.)
COMMISSIONER COLGAN: Yeah, I would like to ask
Judge Riley a question if I could.
JUDGE RILEY: Certainly, yes.
COMMISSIONER COLGAN: I mean, I see that AT&T
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
20
filed to intervene in the case and stated that they
didn't want -- that they wanted language that
included whether the offering meets the definition of
a telephone exchange service or exchange access under
the federal law. And I see all the parties had no
objection to that, but I am not exactly sure what
that meant.
JUDGE RILEY: Well, what I have for you is pure
conjecture. But we think it is a situation where
Illinois Bell anticipates a subsequent filing in this
matter where the applicant may possibly try to assert
that it meets the definition of telephone exchange
service or exchange access service, thereby possibly
requiring AT&T to allow to interconnect with them.
And what AT&T wants to foreclose is --
I don't know if that's the right way to put it. What
they want to make sure is that, by the issuance of
the certificate in this Order, there is no finding of
possibility that the applicant can assert that it is
also -- therefore meets the definition of telephone
exchange service or exchange access service. They
are just hedging their bets as much as they can, and
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
21
they simply wanted language in this Order saying that
there is no definition by the Commission. It is pure
speculation.
COMMISSIONER COLGAN: Okay. So it seems like
it is just a placeholder for, if these future filings
were to come through, that they don't want to be on
record as having agreed to something in this case
that they might not agree to in a future case.
JUDGE RILE: That's it precisely. They just
want to preserve their objection for whatever may
occur down the road, if anything.
COMMISSIONER COLGAN: Okay. Thank you.
CHAIRMAN SCOTT: Any further discussion on this
matter?
(No response.)
Are there any objections to entering
an Order granting the certificates?
(No response.)
Hearing none, the Order is entered.
Items T-5 through T-7 (11-0748,
11-0752, 11-0775) can be taken together. These items
are joint petitions by telecommunication carriers for
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
22
approval of their Interconnection Agreements. In
each case ALJ Baker recommends entry of an Order
approving the agreement.
Is there any discussion?
(No response.)
Any objections?
(No response.)
Hearing none, the Orders are entered.
Item T-8 (12-0133) concerns initiating
a citation proceeding against Affordable Voice
Communications for failure to maintain its corporate
status. Staff recommends entry of an Order
initiating the proceeding.
Is there any discussion?
(No response.)
Any objections?
(No response.)
Hearing none, the Order is entered.
Item T-9 is Docket Number 11-0552.
This is Verizon South's petition for cancellation of
its Certificate of Interexchange Service Authority.
Before us today is an Amendatory Order making
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
corrections in the Order we entered on October 5,
2011, and ALJ Baker recommends entry of that
Amendatory Order.
Is there any discussion?
(No response.)
Any objections?
(No response.)
Hearing none, the Amendatory Order is
entered.
Item T-10 is Docket Number 11-0622.
This is a rulemaking proceeding regarding Title 83
Part 730 of the Administrative Code. Before us today
are a proposed Second Notice Order authorizing the
submission of proposed amendments to JCAR and a
request for oral argument in this matter brought by
the Cable Television and Communication Association of
Illinois. ALJ Albers recommends denying oral
argument and entering the Second Notice Order.
Is there any discussion?
(No response.)
Any objections?
(No response.)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
24
Hearing none, the Order is entered,
and the oral argument request is denied.
Item T-11 is Docket Number 11-0627.
This is a rulemaking proceeding regarding Title 83
Part 756 of the Administrative Code. ALJ Albers
recommends entry of a Second Notice Order authorizing
the submission of the proposed amendments to JCAR.
Is there any discussion?
(No response.)
Any objections?
(No response.)
Hearing none, the Order is entered.
Items T-12 through T-18 (11-0781,
11-0782, 11-0809, 12-0008, 12-0015, 12-0053, 12-0078)
can be taken together. These items are petitions for
the confidential and/or proprietary treatment of
petitioners' Annual Reports. In each case the ALJ
recommends entry of an Order granting the requested
protective treatment.
Is there any discussion?
(No response.)
Any objections?
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
25
(No response.)
Hearing none, the Orders are entered.
We have three Petitions for Rehearing
today. Item PR-1 is Docket Numbers 11-0280 and
11-0281 Consolidated. This is the Peoples and North
Shore Gas rate case, and before us today are
Petitions for Rehearing received from the utilities,
the Attorney General's Office, the Consumer and
Governmental Intervenors, and Interstate Gas Supply
of Illinois. ALJs Hilliard and Kimbrel recommend
denying all rehearing requests, although they do
recommend an Amendatory Order on one issue and seek
clarification on another.
Are the ALJs available?
JUDGE HILLIARD: Yes.
JUDGE KIMBREL: Yes.
CHAIRMAN SCOTT: Gentlemen, could you describe
for us what you are looking for in terms of the
Amendatory Order and the clarification?
JUDGE HILLIARD: This had to do with the Rider
VBA, and the companies noted that on page 164 of the
Order of the last line of the section regarding VBA,
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
26
the last sentence says, "As presenting such over- or
under-recovery is the essential attribute of
decoupling, the Commission supports taking reasonable
steps to avoid the results, and the companies'
proposal is reasonable is hereby approved." The
companies suggest that perhaps the words "is
reasonable" should be removed from the Order or, it
occurs to me, that inserting the word "and" after "is
reasonable" would also make it more readable, I
guess. And that's about all there is to that.
CHAIRMAN SCOTT: Comments from any of the
Commissioners?
All you are looking for then is a
direction to place an Amendatory Order on the agenda?
JUDGE HILLIARD: On the agenda whenever it is
convenient for the Commission, yeah, and then what
the language is, whether you want words removed or
one word added.
CHAIRMAN SCOTT: We could leave that to the
judges. Is there any objection to providing for an
Amendatory Order to be placed on the agenda and
leaving it to the judges' discretion as to how they
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
27
will correct that, that issue? Is there any
objection to that?
COMMISSIONER COLGAN: No.
COMMISSIONER O'CONNELL-DIAZ: I would just
agree with the recommendation that Judge Hilliard
just gave us to insert the word "and."
CHAIRMAN SCOTT: Okay. That's fine.
COMMISSIONER O'CONNELL-DIAZ: Very simple.
CHAIRMAN SCOTT: That's fine then. Without
objection then, please place that Amendatory Order on
the agenda at your convenience.
JUDGE HILLIARD: Thank you.
CHAIRMAN SCOTT: Now, is there an issue that we
need to clarify the intent on the rate design
language?
COMMISSIONER ELLIOTT: Well, Mr. Chairman, my
office had made those changes. And in reading the
companies' application for rehearing, it was clear
that they sought clarity that their understanding of
the issues was incorrect, and I believe their
understanding of it is correct. So I don't believe
any clarification is necessary.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
28
CHAIRMAN SCOTT: Is there any further discussion
on that issue?
(No response.)
Given that there aren't any changes, I
don't believe that we need to take any action then.
Is there other discussion on this
particular matter?
COMMISSIONER O'CONNELL-DIAZ: Mr. Chairman?
CHAIRMAN SCOTT: Yes, Commissioner
O'Connell-Diaz.
COMMISSIONER O'CONNELL-DIAZ: I notice that one
of the issues that is presented for review is the
cash working capital. And if everyone recalls, we
had a discussion with the judges. In their Proposed
Order they determined differently than what the
majority voted for in the Order.
This issue has been wandering around
the Commission, I think, since about 2001, and every
time we have it before us, it is problematic. The
record and the evidence in this matter, I believe,
does not square with the Commission's Order, and I
think it is appropriate for rehearing so that we can
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
29
finally flush this out and finally get the proper,
for lack of a better word, formula on how we look at
this issue.
And so I think that this particular
issue really cries out for rehearing, and so I would
request that we rehear that issue so that -- I
believe Staff is the party that has an argument. I
don't believe it is completely developed in this
record, and I think we would benefit from having that
finally done properly.
COMMISSIONER FORD: Is that a motion?
COMMISSIONER O'CONNELL-DIAZ: That is a motion.
COMMISSIONER FORD: Second.
CHAIRMAN SCOTT: Is there further discussion on
this issue?
(No response.)
All in favor say aye.
COMMISSIONER FORD: Aye.
COMMISSIONER O'CONNELL-DIAZ: Could I just say
one more thing?
CHAIRMAN SCOTT: Sure.
COMMISSIONER O'CONNELL-DIAZ: The Order
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
30
suggests that the pass-through taxes are not a
payment for utility services and, therefore, that's
why we determined what we determined in our Order.
And, unfortunately, that is incorrect. There are
several charges, there are several taxes, that are by
law considered to be a charge for utility service
such as the Energy Assistance charges and the
Renewable Energy and Resources charges.
So our Order is incorrect. And I
would suggest to my colleagues that I think it is
important that our Orders are correct. And as it
stands, it isn't. I think the hearing would correct
that incorrect statement that is in the Order on page
27.
COMMISSIONER COLGAN: And how is that statement
incorrect again? Could you elaborate on that?
COMMISSIONER O'CONNELL-DIAZ: There is the
statement in the Order that the pass-through taxes
are not a payment for utility service and not
recorded as revenue and, therefore, there should be
no revenue lag. Unfortunately, the facts are that
there are several charges on those taxes, of the
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
31
various taxes that are collected, that by law, by
law, it states should be considered as a charge for
public utility service. So that argument just does
not hold water. That position does not hold water.
And the statutory scheme with regard to those charges
is that they are considered utility services charges.
Our Order is not square with that. So
my point is that we should make sure that our Order
comports with what the law is and certainly what the
evidence is. And at this juncture there is a
disconnect. And this is not the only Order that this
has been a problem with. This has been an issue that
has gone forward in several, several cases.
Now, I believe the majority cited to
three particular Orders of late. There are other
Orders that are not cited where the Commission
determined something different. So my suggestion is
that let's get it right. And, you know, if we are so
confident in our decision as it stands, what's to
be -- what's the harm of having rehearing?
COMMISSIONER COLGAN: So your request is that
we would narrowly rehear the issue as to whether or
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
32
not the utility taxes are appropriately a utility
charge and to define which ones are and which ones
aren't? Is that --
COMMISSIONER O'CONNELL-DIAZ: Well, I think you
certainly caught my idea, but I think that the all
encompassing -- the timing is an issue. I think that
we need to rehear the whole issue so that we have a
complete record upon which to make our determination.
And certainly what you have suggested is what I am
suggesting would be one of the factors that we would
rehear. It is not an extensive issue, but as it
stands right now I think that our Order could do with
rehearing.
COMMISSIONER COLGAN: Is that the issue that
the companies asked for rehearing on?
COMMISSIONER O'CONNELL-DIAZ: Yes.
COMMISSIONER COLGAN: Or are they more broadly
asking for the lead lag time of zero days and the
whole issue?
COMMISSIONER O'CONNELL-DIAZ: Well, the problem
is, Commissioner, the evidence that is in the record,
and the judges -- I believe Judge Kimbrel would best
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
33
be able to advise us -- there is a lead lag study
that shows something different than what the Order is
suggesting.
CHAIRMAN SCOTT: Is there further discussion on
the issue?
(No response.)
It's been moved and seconded to grant
rehearing on the issue as delineated by Commissioner
O'Connell-Diaz. All in favor say aye.
COMMISSIONER O'CONNELL-DIAZ: Aye.
COMMISSIONER FORD: Aye.
CHAIRMAN SCOTT: Opposed?
COMMISSIONER ELLIOTT: No.
COMMISSIONER COLGAN: No.
CHAIRMAN SCOTT: No.
The vote is two for and three against,
and the motion to grant rehearing on that issue is
not approved.
There are remaining issues in the
Petitions for Rehearing. Again, the recommendation
from the ALJs is to deny the remaining rehearing
requests. Are there any objections to denying the
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
34
remaining Petitions for Rehearing?
(No response.)
Hearing none, the remaining Petitions
for Rehearing are denied.
Item PR-2 is Docket Number 11-0282.
This is Ameren's natural gas rate case, and before us
today are Petitions for Rehearing received from
Ameren and the Citizens Utility Board. ALJs Albers
and Yoder recommend denying the applications for
rehearing.
Is there any discussion?
(No response.)
Any objections to denying the
petitions?
(No response.)
Hearing none, the applications for
rehearing are denied.
Item PR-3 is Docket Number 11-0710.
This item concerns our approval of a sourcing
agreement for the proposed Chicago Clean Energy coal
gasification facility. Before us today are Petitions
for Rehearing from Nicor, Ameren, Economic
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
35
Development Intervenors and CCE. ALJ Wallace
recommends granting the applications for rehearing
filed by Nicor and Ameren, denying the application of
the Economic Development Intervenors, and makes no
recommendation regarding CCE's application.
There are a number of issues in play
here. There is some overlap in issues among a couple
sets of the entities, but I would entertain a motion
or any discussion on this particular issue.
COMMISSIONER ELLIOTT: Well, Mr. Chairman.
CHAIRMAN SCOTT: Commissioner Elliott.
COMMISSIONER ELLIOTT: In the interest of
brevity I would make a motion that we grant all
requests for rehearing in this case. I think it was
clear from the beginning that, with the truncated
schedule that we had, there was not a sufficient
evidentiary record for all of us to be comfortable
with the decision in this case, and I would be
interested in hearing all parties' further
presentations in developing a better evidentiary
record in which to make a decision in this case.
COMMISSIONER FORD: I certainly would concur
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
36
with Commissioner Elliott. I too want to hear that.
I am an auditory learner, so I think that if we have
rehearing, I can better be able to make the decision
on this. So I would like to hear from all
intervenors.
CHAIRMAN SCOTT: Was that in the form of a
motion, Commissioner Elliott?
COMMISSIONER ELLIOTT: So moved.
CHAIRMAN SCOTT: Is that a second, Commissioner
Ford?
COMMISSIONER FORD: Yes, it is.
CHAIRMAN SCOTT: Is there further discussion on
this matter? Commissioner Colgan.
COMMISSIONER COLGAN: I agree with what
Commissioner Elliott and Commissioner Ford said. I
think this is a unique situation and that we need
to -- I think we have established procedures for how
we handle different things when they come to us and
this one didn't fit squarely into the context of how
we traditionally handle things. And I think it would
be in our best interest to just rehear the case.
CHAIRMAN SCOTT: Further discussion?
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
37
COMMISSIONER O'CONNELL-DIAZ: I would just
suggest that I agree with the comments made so far,
but I think that when we have -- in picking up on
what Commissioner Colgan just suggested, we have
proper procedures with regard to handling cases and
this we had such a short timeline that the Commission
could not do their due diligence. And as we move
forward and we get different types of legislation
like this, I think there is a lesson to be learned
when that schedule is compressed and the Commission
is not allowed to afford the due process that is
necessary for us to be able to protect the rights of
everyone that is bringing the case here and for us to
actually make the review of the record on these
somewhat complicated matters. So this now will
afford us further time.
I will suggest, though, that I
personally will be taking a look at what's going on
in the docketed proceeding. I noticed, as we were
getting to the point that we are today, that there
were filings in this matter that really pushed the
envelope as to whether they are proper filings or
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
38
not, affidavits and things of that nature attached to
pleadings at the end of the case. I would hope that
the attorneys that are handling this go back and read
the rules of the road with regard to that so that the
Commission has the proper evidentiary record upon
which to make their determination and that there is
not a lot of time spent in motions to strike and
things of that nature. Everyone is experienced that
are involved here, and I would look forward to that
professionalism being evidenced in the conduct of the
counsels that are involved in these matters.
CHAIRMAN SCOTT: Further discussion?
(No response.)
It is moved and seconded to grant
rehearing on all the issues brought by the
participants.
All in favor say aye.
COMMISSIONERS: Aye.
CHAIRMAN SCOTT: Any opposed?
(No response.)
The vote is five to nothing, and the
Petitions for Rehearing are granted.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
39
With that, Judge Wallace, thanks for
your hard work on this case. I know there has been a
lot for you to do in a fairly compressed time, and we
just gave you a lot more.
JUDGE WALLACE: You just gave me more.
CHAIRMAN SCOTT: I wanted to recognize that and
both thank you for what you have done and in advance
for what you will do on this case.
We have a few items of other business
up for consideration today. We will begin with the
approval of results from the IPA's recent procurement
events for Ameren and ComEd concerning the
procurement of renewable energy certificates pursuant
to Section 16-111.5(k-5) of the Public Utilities Act.
Is there any discussion?
(No response.)
Is there any objection to approving
the results consistent with the procurement
administrator's recommendation?
(No response.)
Hearing none, the results are approved
for both the Ameren and ComEd REC procurement events.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
40
Our last item is a FERC matter which
will require us to go into Closed Session.
Is there a motion to go into Closed
Session?
COMMISSIONER ELLIOTT: So moved.
CHAIRMAN SCOTT: Is there a second?
COMMISSIONER COLGAN: Second.
CHAIRMAN SCOTT: It's been moved and seconded.
All in favor say aye.
COMMISSIONERS: Aye.
CHAIRMAN SCOTT: Opposed?
(No response.)
The vote is five to nothing. We will
now go into Closed Session. Let us know when you are
ready in Chicago.
(Whereupon at this point
pages 41 - 47 of the
proceedings are
contained in a separate
closed transcript.)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
48
CONTINUATION OF PROCEEDINGS
CHAIRMAN SCOTT: In Closed Session the
Commission discussed making a filing in FERC Docket
Number EL 12-24.
Is there a motion to make a filing
with FERC?
COMMISSIONER ELLIOTT: So moved.
CHAIRMAN SCOTT: Is there a second?
COMMISSIONER COLGAN: Second.
CHAIRMAN SCOTT: It's been moved and seconded.
All in favor say aye.
COMMISSIONERS: Aye.
CHAIRMAN SCOTT: Any opposed?
(No response.)
The vote is five to nothing, and the
filing will be made with FERC.
Judge Wallace, are there any other
matters to come before the Commission today?
JUDGE WALLACE: No, that's about it.
CHAIRMAN SCOTT: Thank you, sir. Hearing none,
this meeting stands adjourned.
BENCH SESSION ADJOURNED