Wednesday, December 11, 2013

Cross Examination of RICL Expert by ComEd's Lawyer



Below is the transcript of the cross examination of theexpert witness for the Rock Island Clean Line (RICL) by ComEd's lawyer.  I found it an entertaining read.   It's difficult to cut out the best quotes.  Perhaps it can be divided into segments but many times Mr Bernet does transition from one subject to the other rather smooths and other times Mr. Bernet jumps around and looks to keep Dr. McDermott off balance.  Mr. Bernet covered cost allocation, necessity, and eminent domain and in my opinion, he did a great job filleting RICL's "expert" witness and tore him up. 

If you've been following this drama unfold and the escapades of the gang at RICL for the last year and a half, you'll find it interesting this lawyer used all the same issues we've been hammering RICL.  Now I seriously doubt this actual energy company took direction and talking points from any grassroots organization or opposition.  These guys get paid way too much for a job like that.  The direction this lawyer took actually vindicates all of us who have been opposing RICL.  We're right and this lawyer for the energy company proves it.     

When Ameren put that 100kv distribution line through our pasture a couple years ago, by the end, the one thing knew was ComEd probably has the sharpest lawyers in Springfield.  They don't work the system through schmoozing or politics, but they know the industry and they know how to conduct themselves at the ICC.  After the Ameren case was finished and just reading the transcripts, I was glad it wasn't ComEd who wanted to pass through our pasture.  They are the sharpest lawyers at the ICC and I think RICL is painfully discovering it.  


JUDGE JONES: Give me one moment. All right. I think there is some cross-examination for the witness, I think, from three parties.  Who would like to lead off?

MR. BERNET: Your Honor, Commonwealth Edison would like to lead off.

JUDGE JONES: Please proceed.

CROSS-EXAMINATION

QUESTIONS BY MR. BERNET:

Q. Good morning, Dr. McDermott. Richard Bernet on behalf of Commonwealth Edison. Nice to See you again.

A. Good to see you, sir.

Q. Dr. McDermott, if I ask you a question that is unclear or that you don't understand, please ask me to rephrase, and I'll do my best to do that.  When I refer to "the line" or "Rock Island line" or "the project," you'll understand that what I'm referring to is the Rock Island transmission line that is the subject of this proceeding; right?

A. Yes.

Q. In order for the ICC to issue a Certificate of Public Convenience and Necessity in this case, it must conclude that the line will promote the development of an effectively competitive electricity market that operates efficiently, is equitable to all customers, and is the least-cost means of satisfying those objections -- objectives. That's right, isn't it?
A. That's correct.

Q. And so there's really four elements; right? That it will promote the development of an effective -- effectively competitive electricity market, that it operates efficiently, that it is equitable to all customers, and that it is the least-cost means of satisfying those objections -- objectives.
A. Correct.

Q. And that's under Section 8-406 of the Public Utility Act; right?
A. Correct.

Q. And then Rock Island is also asking for an order under Section 8-503 of the Public Utilities Act; right?
A. Yes.

Q. And so under that provision, the Commission must also determine that the line is necessary to promote the development of an effectively competitive electricity market; isn't that right?
A. Yes.

Q. And if the facts in this case do not support every one of those elements, then the Commission must deny the petition; isn't that right?

MR. MACBRIDE: Objection. That calls for a legal conclusion from Dr. McDermott.

MR. BERNET: Your Honor, the witness is testifying that he -- that Rock Island has proved these elements; and, you know, I'm not asking him as a lawyer.

MR. MACBRIDE: Well, Judge, he -- Mr. Bernet's statement is correct that Dr. McDermott has testified that Rock Island has satisfied the elements that Mr. Bernet laid out, but Dr. McDermott has not been asked to testify on other elements that may lead to the granting of the requested orders.

JUDGE JONES: Dr. McDermott has opened the door on this line of questioning with his own testimony. He addressed these elements -- or some of these elements to some degree, at least, as an expert. Is he being asked to express an opinion on any of the elements other than those he spoke to in his testimony?

MR. BERNET: Your Honor, I'll withdraw the question.

JUDGE JONES: All right. Question is withdrawn.

Q. (By Mr. Bernet) Dr. McDermott, I'd like to direct your attention to your rebuttal testimony at lines 203 to 207. Let me know when you're there.
24 A. I'm there.

Q. So in that section, you say, "Third" -- and I quote, "Third, while this may be an obvious point, it bears stating that a market-based transmission line must be the least-cost approach or the line will not obtain sufficient contracts to justify building it. If, for example, shippers could reach their desired markets using an alternative lower-cost resource, they will not sign contracts." Did I read that right?
A. Yes.

Q. It's not your contention that this language is intended to establish that the line is the least-cost alternative under Section 8-406 of the Public Utilities Act, is it?
16 A. Well, under -- under 8-406 they discuss the least cost, and what I'm pointing out here is that the proposal that's being presented by Rock Island must be least cost in the sense that I've stated there or it won't -- it won't come to fruition, and that's what the competitive market is all about.

Q. But that -- that -- that section is not designed to demonstrate that the -- that Rock Island has met the least-cost obligation under Section 8-406, is it?
A. I think it's information that can be taken into account in that, yes.

Q. Let me direct your attention to page 2 of your direct testimony, lines 27 -- lines 27 to 33. In that section -- are you there?
A. I'm there.

Q. So in that section of your direct testimony, you're telling the Commission what elements of the statute you are testifying about; isn't that right?
A. That is correct.

Q. And the least-cost alternative section of the statute that we talked about earlier isn't there, is it?
A. No, sir, it isn't.

Q. In the model that is in your testimony, you only evaluated the Rock Island transmission line. You didn't evaluate any other transmission lines; is that right?
A.  That's correct.

Q. And the only analysis that you performed in connection with your engagement by Rock Island is the analysis set forth in your testimony; right?
A. That's correct.

Q. Now, Dr. McDermott, you conducted an economic analysis of the effect the line would have on energy prices in Illinois; right?
A. That's correct.

Q. And do you have an understanding of what the cost to construct the line is?
A. I've seen the numbers. I don't recall offhand.

Q. Subject to check, would you accept that the cost to construct the line is approximately $1.8 billion?
A. That sounds right.

Q. And in your direct testimony at lines 46 to -- 46 and 47, you testify that the economic benefits of the line are between 667 million and 1.22 billion; isn't that right?
A. That's correct.

Q. So your test -- and your testimony does not discuss the $1.8 billion to construct the line, does it?
A. Because it's not being asked to be paid for by the customers.

Q. But it doesn't discuss that, does it?
A. No, sir.

Q. And the PROMOD model that you discuss in your testimony does not include the cost to construct the line?
A. I do not believe in the models that we use, no.

Q. And the economic benefits that you describe above does not incorporate the cost of building or maintaining the line?
A. Again, because it's not being asked to be paid for. So it's not a cost that has to be netted out against the benefits.

Q. But that's a "Yes"; right?
A. That's a "Yes."

Q. Your analysis assumes that a hundred percent of the generation that will provide the power that will flow on the line is wind; isn't that right?
A. That's correct.

Q. Your testimony does not identify a single generator that has signed up to use the line, does it?
A. No, sir.

Q. In fact, owners of the generation that will use the Rock Island line are unknown, aren't they?
A. At this point in time.

Q. And one cannot predict with a hundred percent accuracy what resources will use the line?
A. But, again, in the sense of the benefit analysis that's been done, that -- if a higher-cost resource is utilizing the line, that would just reduce the benefits by some amount, but it's not my estimate that it would ever turn it negative.

MR. BERNET: Your Honor, I move to strike. I asked for a yes or no.

JUDGE JONES: Response?

MR. MACBRIDE: I think the question [sic] was responsive. Mr. Bernet may want a yes or no, but I think the witness is entitled to respond to the question as he sees appropriate.

JUDGE JONES: Could we have the response read back, please, Ms. Reporter?
(The requested portion was read back by the court reporter.)

JUDGE JONES: All right. Could I have the question back too, please.

COURT REPORTER: Yes. I'm sorry. (The requested portion was read back by the court reporter.)

JUDGE JONES: And start the answer again, please. Sorry.
(The requested portion was read back by the court reporter.)

JUDGE JONES: Thank you. The motion is granted, not because the question was not provided yes or no. I think the real test, at least the way I see it, is, if the witness makes an effort to answer the question that was asked and not some related question, then we're going to give the witness leeway. Or if the witness has answered a different question than the one that was asked, even if it might seem related, then the motion should be granted. Here I think Dr. McDermott provided an answer that's related to the question, but he did not answer the question that was asked.

In making that ruling, I am not limiting this witness or any witness to yes-or-no answers in every situation. Most situations
4 involving complicated questions and expert witnesses are not necessarily going to get you a yes-or-no answer. There are some that do; some that don't. I'm not limiting this witness to answering that question with a yes-or-no answer, but the answer that he gave went beyond the question. Hence it's stricken.

Q. (By Mr. Bernet) Dr. McDermott --
JUDGE JONES: Now, do you want him to -- is the question still out there or -- 15 MR. BERNET: I'll ask a different question.

JUDGE JONES: All right.

MR. BERNET: Thank you, Your Honor.
Q. (By Mr. Bernet) Direct your attention to your rebuttal testimony, Dr. McDermott, and specifically lines 176 to 177. Can you read the sentence that starts with the word "While"?
A. "While Mr. Naumann is correct that one cannot predict with 100 percent accuracy what resources will use the line -- though, as Mr. Berry discusses, it is hard to imagine that there would be sufficient non-wind resources in the project's resource area seeking to transport their output to Northern Illinois to justify building the project -- whatever the resource use" -- "whatever resources use the line will be lower cost resources than current or future resources in PJM or those resources will not use the line."

Q. Rock Island cannot restrict use of the line to wind generators, can it?
A. That's my understanding -- that it cannot.

Q. In fact, FERC denied Rock Island's request to give preference to wind generation for use of the line. Isn't that true?
A. That's my understanding.

Q. And the FERC open access rules require Rock Island to allow any eligible customer to purchase capacity on the line; isn't that right?
A. That's my understanding.

Q. I'm going to read three statements to you. I'd like -- I'd like to know if you believe these statements are accurate. The project serves no purpose without the new wind resources, and the new wind resources would not be developed without the transmission access afforded by the Rock Island project. Is that an accurate statement?
A. Can you read it to me one more time?

Q. Sure. The project serves no purpose without the new wind resources, and the new wind resources would not be developed without the transmission access afforded by the Rock Island project.
A. I'm not sure what context that statement's being made in, but I believe that, if the Rock Island project gets built, the wind resources will be sought to be contracted for.
Q. Well -- so you can't answer the question whether or not you think that statement is accurate?
A. Again, it's hard for me to put it into a content, but as I said, I -- I think if -- if the line is given a certificate, the company will go out and attempt to sign up contracts with wind resource providers.

Q. Do you believe the project serves no purpose without the new wind resources?
A. It could -- if they built the project and no wind resources came, if you're saying that, and would there be other potential resources that could use the line? That's certainly a possibility.

Q. But your analysis doesn't deal with that situation?
A. No, sir.

Q. The resulting economic and environmental benefits are wholly driven by new wind generation facilitated by the Rock Island project. Is that an accurate statement?
A. Again, if you could reread it.

Q. Sure. The resulting economic and environmental benefits are wholly driven by new wind generation facilitated by the Rock Island project.
A. I believe that is one of the benefits that is provided by this line, yes.
Q. So that's accurate?
A. I believe so, given that I have – I don't have it in front of me and I can't read it and think about it some more, but I think that the resulting economic benefits of this line are in part driven by the ability to provide those wind resources.

Q. This benefit study is unique in that the economic feasibility of the Rock Island project and the new wind generation resources that will utilize it are directly intertwined such that one cannot be reasonably modeled without the other. Is that a true statement?
A. If I can have that read again.

Q. Absolutely. This benefit study is unique in that the economic feasibility of the Rock Island project and the new wind generation resources that will utilize it are directly intertwined such that one cannot be reasonably modeled without the other.
A. Yes. I think that the line and the resources are -- the way we've looked at it in our model, it's -- we have the line, and there are -- it's full with wind resources, and that's where the benefits are driven from in our model.

Q. So that is an accurate statement?
A. I believe so.

Q. Your testimony refers to the – and I can point it to you, but you refer to the project -- the project's resource area. Are you familiar with that?
A. Right.

Q. Where is that?
A. In Iowa. Northwest Iowa.

Q. How large is that area?
A. Offhand I couldn't tell you.

Q. I mean, a hundred miles? 500 miles? A thousand?
A. Well, again, you'd be looking at -- along the segment of the line where they're going to interconnect those wind farms. I couldn't give you a geographic space specifically.

Q. Yeah, I know. I'm not asking you specifically. But can you give me any kind of -- is it a mile? Is it more than a mile? Less than a thousand miles?
A. More than a mile and less than a thousand.

Q. Okay. Now we're making progress.
A. Okay.

Q. I mean -- let me ask it this way: What's the outer limit, generally speaking? What's the furthest after way from the western interconnetion point -- well, let me strike that. Is the western interconnection point of this line in that project resource area?
A. I believe that -- yes.

Q. And so the idea is that's where the western end of the transmission line is, and then the generation is out in that area around where that -- or it's somewhere in relation to that geographic location?
A. Right. And there may be numerous ways in which they can interconnect with those, but I'm not an engineer, and I don't know what their plans are from that perspective.

Q. Okay. And in terms of the outer limit of that project resource area, you can't tell me whether that's a thousand miles or 500 miles away from that interconnection point?
A. No. I think it's -- it will depend on the technologies that the company and the wind suppliers are going to use to interconnect their power.

Q. That doesn't currently exist?
A. That doesn't currently exist.

Q. If a wind generator located at a position wanted to interconnect -- in that resource area wanted to interconnect to the line, that generator would have to pay the cost of building a transmission line to reach that interconnection point; isn't that right?
A. There would be, I imagine, some cost associated with that, yes.

Q. And that generator would have to pay that cost?
A. Yeah. Potentially, yeah.

Q. I mean, that's the way the federal rules work; right?
A. Right.

Q. Left me direct your attention to your direct testimony, lines 113 to 116.
A. I'm there.

Q. And so let me read that. "There are several possible benefits from the proposed project. First, renewable energy resources" --"renewable resources" -- I'm sorry -- "have very low marginal costs of production. As market prices are related to the marginal cost of production, additional renewable resources can have the effect of lowering overall wholesale market prices."
Did I read that right?
A. Yes, you did.

Q. Your economic analysis does not incorporate the cost that wind generators would have to incur to interconnect to that western interconnection point of the line, does it?
A. No.

Q. Like to direct your attention to your surrebuttal testimony, in particular line 57.
A. Just give me a moment.

Q. Let me know when you're there.
A. You said line 57?

Q. Yes.
A. All right.

Q. And so it actually starts on line 56. You testify that "Rock Island both has stated its intent and made a commitment not to use cost allocation at all."  Did I read that right?

A. Yes.

Q. And by "cost allocation," you mean putting some or all of the cost to construct the line into rate base such that those costs would be passed on to customers in the ComEd zone?
A. That's correct.

Q. Is that commitment absolute in your mind?
A. I mean, it's hard for me to speak on behalf of the company, but it's my understanding that, if anything changed, they would come before the Commission again to have it re-examined.

Q. So it's not absolute?
A. I don't -- again, I'm not -- my view is they're trying to make it as absolute as possible, but should something else happen, if that did, in the remote possibility, they've agreed that they would come before the Commission.

Q. So it's conditional?
A. That's one way.

Q. Okay. So your testimony that says they will not use cost allocation at all is not accurate?

JUDGE JONES: Is that a question?

MR. BERNET: Yes.
A. As it stands right now, that's my understanding of the proposal -- that they will not ask for any cost allocation. So that's what I was evaluating.

Q. (By Mr. Bernet) As a former commissioner, can you explain how the commitment -- well, let me back up for a second. I think you testified that, before Rock Island would attempt to rate base the cost of the line, they'd come back to the -- they'd come back to the Commission; right?
A. That would be my understanding.

Q. Come back to the ICC.
A. Yes. This Commission.

Q. As a former commissioner, can you explain how the commitment would be enforced if, after the line was built, Rock Island made a filing requesting that all or part of the cost of the project be included in rate base?

MR. MACBRIDE: Object to the question. This is outside the scope of Dr. McDermott's testimony.

MR. BERNET: No. He's testifying that the company has made a commitment not to use cost allocation. I'm asking him how that commitment would be enforced.

JUDGE JONES: Mr. MacBride, are you suggesting the question does not go to cost allocation?

MR. MACBRIDE: No. I'm suggesting that asking him to express his opinion as a former commissioner is outside the scope of his
testimony. I'd also point out that other company witnesses --

JUDGE JONES: Is this still in response to my question? If not, then –

MR. MACBRIDE: Yes.

JUDGE JONES: Go ahead.

MR. MACBRIDE: Yes. Yes. No. What I was about to say was not. It was further -- in further support of my objection.

JUDGE JONES: All right. The objection is overruled. Please answer the question, if you have an answer. Do you need the question read back, sir?

A. Please, sir.

1 JUDGE JONES: Could I have the question read back, Ms. Reporter?
The requested portion was read back by the court reporter.)

MR. MACBRIDE: Could I ask Mr. Bernet to clarify it by --

JUDGE JONES: No. I just asked the question read back, and the ruling has been made. I didn't have the question read back to open up the door for another string of objections.  So if the witness understands the question, if he has an answer to give us, then we ask him to provide that.
A. That's really difficult to answer because it will depend upon the facts and situation that would be presented to the Commission at the time that request would be made. So, as a result, it's hard for me to know.

Q. (By Mr. Bernet) So you don't know?
A. No.

Q. In your rebuttal testimony, you refer to the testimony of Mr. Naumann; right?
A. Yes.

Q. And let me direct you specifically in your rebuttal to lines 43 through 47.
A. I'm there.

Q. So there you say, "...ComEd's position requiring that merchant transmission developers have to resolve nearly every possible uncertainty, undertake and complete every necessary study, and resolve future litigation prior to receiving a CPCN."
A. That's --

Q. That's what you said; right?
A. Correct.

Q. In your experience as an ICC commissioner or otherwise, are you aware of a single case in which the Commission granted a
Certificate of Public Convenience and Necessity under Section 8-406 of the PUA when the studies that Mr. Naumann refers to were not complete?
A. Well, again, I don't know that there have been other merchant plants of this nature so it would be hard to make comparisons.

Q. So is that a "No"?
A. Offhand I can't think of any.

Q. Let me direct your attention to your rebuttal testimony at line 147.

A. I'm there.

Q. Can you read the sentence that begins on line 147, please, and ends on line 148.

JUDGE JONES: Why do you want him to read that?

MR. BERNET: Pardon me?

JUDGE JONES: Why do you want him to read that?

Q. (By Mr. Bernet) Well, are you there?
A. Yes, I am.

MR. BERNET: Can I read it?

JUDGE JONES: Well, why do you want to read it?

MR. BERNET: I want to ask him a question about that -- about that sentence.

JUDGE JONES: All right. Go ahead.

Q. (By Mr. Bernet) The sentence says, "As I indicated above, if sufficient demand does not materialize for the project, it will not be built." That's your testimony; right?
A. That's correct.

Q. In your experience as an ICC commissioner or otherwise, are you aware of any case in Illinois where the ICC issued a CPCN where the applicant indicated that it would not construct the line if demand did not materialize?
A. Now we're talk -- just power lines or any project?

Q. Power lines.
A. I think this is a case of first impression in the sense that it's a, you know, merchant plant that's coming in; and, again, competitive process allows for, you know, someone to make a proposal like this. The Commission can approve that proposal, and if it doesn't materialize, the customer's not harmed.

Q. Right. I understand. That wasn't my question. My question was are you aware of a situation where the Commission granted a certificate under these circumstances?
A. Not offhand, no.

Q. In your experience as an ICC commissioner or otherwise, are you aware of any case in Illinois where the ICC issued certificate under Section 8-406 of the Public Utilities Act where the applicant had not unconditionally committed to build a transmission line if it obtained a CPCN?
A. I'm sorry. Could you read that back to me?

Q. Sure. In your experience as an ICC commissioner or otherwise, are you aware of any case in Illinois where the ICC issued a Certificate of Public Convenience under Section 8-406 of the Public Utilities Act where the applicant had not unconditionally committed to build a transmission line if it obtained the certificate?
A. Since I think this is the first real you know, merchant line that's coming in as an economics case, I think this is the first.

Q. So that's a "No"?
A. "No."

Q. Through your testimony you're indicating that the Commission should grant an order under Section 8-503 of the Public Utilities Act and should order Rock Island to construct the
line; is that right?
A. That they should grant them that certificate and allow them to construct the line.

Q. But that -- let me ask you this: What is your understanding of how an order under Section 8-503 differs from an order under Section 8-406?
A. I would have to go back and look at the language again.

Q. So you don't know just off the top of your head, like --
A. I'm trying to think about the -- if there's specific nuances in that language.

Q. Well, let me ask this: Why is Rock Island asking for an order under Section 8-503?
A. Well, I think the whole process is they're asking for an order so that they can go back to those people that haven't signed up for them yet and begin to show them that we have a line that's going to be built and that you can build your wind farms and connect to this line and that power and the RECs that come from that power production will be available for the customers.

Q. Do you have an understanding that an order under Section 8-503 is a prerequisite to getting eminent domain authority?
A. I believe it can be, but I don't believe pre -- eminent domain was being asked in this case.

Q. Well, let me ask it again. Do you believe that an order under Section 8-503 is required as a prerequisite to getting eminent domain authority from the Commission?
A. I believe that's true.

Q. Are you aware of any reason why an applicant would want an order under Section 8-503 other than to eliminate the preconditions to obtaining condemnation authority?
A. For the reason I just stated earlier: that they want to be able to go back to their customers -- potential customers and show them that they have the authority to build the line and that they're beginning to build the line and that they'll be in a place they can sell their power.

Q. But they have that authority under Section 8-406; right?
A. Yes.

Q. So they wouldn't need 8-503 to make that statement to their customers?

JUDGE JONES: Is that a question?
MR. BERNET: Yes.
A. I believe that's the case, but it's --

Q. (By Mr. Bernet) So is it your testimony that you're not sure why Rock Island is asking for both an order under 8-406 and an order under 8-503?
A. Well, the scope of my testimony was to do the economic analysis if the line is built and how it will impact the competitiveness of the marketplace in Illinois, and that's what my testimony is about.

Q. Okay. So just so we're clear, the scope of your testimony only relates to the -- whether or not it will -- it will affect the competitive market --
A. That's correct.

Q. -- and nothing else. So in other words, in understanding why an 8-503 order is being sought by Rock Island, you don't really know?
A. I -- I -- I'm -- my analysis is being done based on the fact that a line would exist, it would be full, and the power that's brought in to PJM and Illinois and MISO will have an economic impact.

Q. Do you have any experience with Section 8-503 as a former commissioner?
A. Yes.

Q. Isn't it true that, once an order under Section 8-503 is entered, the entity would have eminent domain authority at that point?

JUDGE JONES: Could you read that question back, please.(The requested portion was read back by the court reporter.)

MR. MACBRIDE: I object to the question as calling for a legal conclusion from Dr. McDermott.

MR. BERNET: If he knows.

JUDGE JONES: Dr. McDermott has made some references to 8-503 in his testimony. Whether or to what extent he's opened the door
for this particular question is somewhat of a close call. If he understands the question and if he can answer it, we'll ask him to answer it. So the objection is overruled.

A. It's my understanding that they have not sought this, and so if a 503 were offered and they wanted to then have eminent domain, that may be one of the conditions that has to come back before the Commission for approval because they haven't asked for it.

Q. (By Mr. Bernet) No. I understand they haven't asked for it. My question was, if they get an order under Section 8-503, does that mean they then have eminent domain authority based on your experience?

MR. MACBRIDE: I have the same objection, Judge, and this is asked and answered. I think the witness has expressed his understanding related to the question.

MR. BERNET: I disagree. I don't think he answered the question at all. He testified -- the way he answered the question, he said they're not seeking eminent domain authority. That wasn't my question.

MR. MACBRIDE: Judge, I believe he answered the question consistent with your instructions.

JUDGE JONES: Objection overruled. I think there's been a slight -- I think the explanation as to why the question is still being put before the witness is an acceptable explanation. If you understand the question and have any further answer to it, please give it, and if you do not, we'll move on.

A. I do not.

Q. (By Mr. Bernet) In your experience as a commissioner, when the ICC determines that a public utility is entitled to eminent domain authority under the Public Utilities Act for a particular transmission line, that authority extends to every parcel of property along the entire route, doesn't it?
A. I believe so.

Q. So, in other words, if the applicant shows that there's an impasse with one property owner, the Commission gives them eminent domain for the entire length of the line?
A. I don't recall the legal status. I can't say yes or no to your question.

Q. Is it your understanding that Clean Line or Rock Island is seeking to be deemed a public utility in this case?
A. Well, they're asking for a Certificate of Convenience and Necessity. I don't think they're wanting to be a utility in the traditional sense that you're talking about.

Q. But don't they -- doesn't -- the Section 8-406 only applies to public utilities, doesn't it?
A. And they're seeking authority to be able to construct the line as a public utility, yes.

Q. In your experience as an ICC commissioner, are you aware of any entity that the Commission found to be a public utility that didn't have a single customer?

JUDGE JONES: Let me ask you: You've asked one form of that -- you use -- started off a lot of questions with that -- with those words. Are you asking him while he was a commissioner, or are you asking him something else?

MR. BERNET: No. I'm asking him based on his experience, which includes the time that he was a commissioner.

JUDGE JONES: Well, then, if that's what you're asking, then that's kind of – I think that's what we need. If you're going to have more of these questions along that line, then that's how that needs to be posed if you're --

MR. BERNET: Okay.

JUDGE JONES: -- if you're intending to pick up both the period when he was a commissioner and since.
MR. BERNET: Thank you.
A. Can you ask that again?

Q. (By Mr. Bernet) I can. In your experience as an ICC commissioner and subsequent to that time, are you aware of any entity that the Commission has found to be a public utility that didn't have a single customer?
A. No. I can think of --

COURT REPORTER: I'm sorry. Could you --

A. I'm sorry. No.

MR. BERNET: Nothing further. Thank you, Doctor.

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