1 BEFORE THE OHIO POWER SITING BOARD 2 - - - 3 In the Matter of: : : Case No. 07-171-EL-BTX 4 In the Matter of the : Application of the : 5 American Transmission : Systems, Incorporated, and: 6 the Cleveland Electric : Illuminating Company for a: 7 Certificate of : Environmental : 8 Compatibility and Public : Need for the Geauga County: 9 138 Kilovolt Transmission : Line Supply Project. : 10 11 - - - 12 PROCEEDINGS 13 before Ms. Janet Stoneking, Attorney Examiner, at the 14 Public Utilities Commission of Ohio, 180 East Broad 15 Street, Room 11-F, Columbus, Ohio, called at 10:00 16 a.m. on Wednesday, May 21, 2008. 17 - - - 18 19 20 21 ARMSTRONG & OKEY, INC. 185 South Fifth Street, Suite 101 22 Columbus, Ohio 43215-5201 (614) 224-9481 - (800) 223-9481 23 Fax - (614) 224-5724 24 - - - ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 2 1 APPEARANCES: 2 Porter, Wright, Morris & Arthur, LLP By Mr. Robert J. Schmidt 3 and Mr. Christopher R. Schraff 41 South High Street 4 Columbus, Ohio 43215-6194 5 On behalf of the Applicants. 6 FirstEnergy Corp. By Mr. Morgan E. Parke 7 76 South Main Street Akron, Ohio 44308 8 On behalf of the FirstEnergy Company. 9 Taft, Stettinius & Hollister, LLP 10 By Mr. Benjamin J. Parsons 21 East State Street 11 Suite 1200 Columbus, Ohio 43215-4221 12 On behalf of the Citizens Advocating 13 Responsible Energy 14 Mark Dann, Ohio Attorney General Duane W. Luckey, Senior Deputy 15 Attorney General Public Utilities Section 16 By Mr. Thomas W. McNamee and Mr. Thomas Lindgren 17 180 East Broad Street, 9th Floor Columbus, Ohio 43215-3793 18 On behalf of the Staff of the Ohio Power 19 Siting Board. 20 - - - 21 22 23 24 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 3 1 Wednesday Morning Session, 2 May 21, 2008. 3 - - - 4 THE ATTORNEY EXAMINER: The Ohio Power 5 Siting Board as assigned for hearing at this time and 6 place Case No. 07-171-EL-BTX, captioned: In the 7 Matter of the Application of the American 8 Transmission Systems, Incorporated, and the Cleveland 9 Electric Illuminating Company for a Certificate of 10 Environmental Compatibility and Public Need for the 11 Geauga County 138 Kilovolt Transmission Line Supply 12 Project. 13 My name is Janet Stoneking and I am the 14 Administrative Law Judge that has been assigned by 15 Ohio Power Siting Board to conduct the hearing for 16 this case. 17 First I'd like to take appearances for 18 counsel starting with the company. 19 MR. SCHRAFF: Yes, your Honor. On behalf 20 of the applicants, American Transmission Systems 21 Incorporated and the Cleveland Electric Illuminating 22 Company, Christopher Schraff, outside counsel with 23 the law firm of Porter, Wright, Morris & Arthur, 24 41 South High Street, Columbus, Ohio, 43215. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 4 1 THE ATTORNEY EXAMINER: Thank you. 2 Intervenors. 3 MR. PARSONS: Yes, your Honor. Benjamin 4 Parsons, with the law firm of Taft, Stettinius & 5 Hollister, LLP, 21 East State Street, Suite 1200, 6 Columbus Ohio, here on behalf of the intervenor, 7 Citizens Advocating Responsible Energy. 8 THE ATTORNEY EXAMINER: Staff. 9 MR. LINGREN: On behalf of the Ohio Power 10 Siting Board, the Ohio Attorney General's Office, 11 Public Utilities Section, by Duane Luckey, section 12 chief, Thomas Lindgren and Thomas McNamee, assistant 13 attorneys general. The address is 180 East Broad 14 straight knight floor Columbus, Ohio 43215. 15 THE ATTORNEY EXAMINER: Thank you. 16 MR. SCHRAFF: I may also mention with me 17 is co-counsel, Robert J. Schmidt, also of the law 18 firm of Porter, Wright, Morris & Arthur, and sitting 19 in between us is Morgan Parke, attorney for 20 FirstEnergy and the applicants. 21 THE ATTORNEY EXAMINER: Thank you. I'd 22 like to note for the record a status conference was 23 held with the parties on April 21, and during that 24 status conference we discussed some procedural issues ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 5 1 for the case, one of which was to continue local 2 public hearings which were scheduled for May 12 and 3 May 13 in order for the company to have additional 4 time to respond to discovery requests from staff. 5 It's my understanding that that discovery request was 6 docketed yesterday. 7 MR. SCHRAFF: That's correct, your Honor. 8 THE ATTORNEY EXAMINER: To your 9 knowledge, Mr. Schraff, does this complete the 10 discovery responses to staff? 11 MR. SCHRAFF: Yes, it does. As far as 12 we're concerned, we believe that the response is 13 complete. 14 THE ATTORNEY EXAMINER: Thank you. I 15 understand that staff probably hasn't had time to go 16 through that. 17 MR. LINGREN: That's correct, your Honor, 18 the staff is currently reviewing the discovery 19 response. It reserves the right to issue additional 20 discovery if it believes any of the information there 21 is not complete or not sufficient. 22 THE ATTORNEY EXAMINER: Thank you. I'd 23 like to note for the record in that status conference 24 we had between the parties we had established a ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 6 1 discovery completion date of June 30 for the parties, 2 and then the objective is to conduct the local public 3 hearings in early July and reconvene this hearing in 4 mid-July. 5 We have another status conference for 6 counsel for the parties set for June 23 at 1:30 by 7 teleconference, and I will provide the bridge number 8 prior to that for the parties. At the June 23 9 teleconference I would like for the parties to be 10 prepared to discuss any outstanding discovery issues 11 if there are any. Hopefully there will be none. 12 Are there any administrative issues we 13 should deal with today? 14 MR. SCHRAFF: Your Honor, there are a 15 couple of issues we would like to take up with you. 16 One is the status of the interventions. Currently in 17 addition to CARE, I believe one township, Huntsburg 18 Township, has filed a notice of intervention. I 19 don't know if that's been acted upon, but it appears 20 that they likely would be another party to the 21 hearing. 22 We understand that in light of the 23 staff's discovery request No. 16 with respect to this 24 bike path alternate route, it's our understanding ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 7 1 that the Geauga County Park District will shortly be 2 seeking to intervene into these proceedings. And it 3 is also possible that we may have additional 4 intervenors beyond that, in particular, the City of 5 Chardon, which would also be traversed by the 6 alternate hybrid bike path route, has given 7 indications it may shortly be filing a request for 8 intervention. So I just wanted to bring that to the 9 attention of the judge because it may affect how we 10 proceed from here on out. 11 THE ATTORNEY EXAMINER: Thank you. 12 Just to briefly respond to your concern 13 about the intervention cutoff, my understanding is 14 that based on the Power Siting rules, that the normal 15 intervention by right, that time frame has expired. 16 However, the rules also provide that parties may 17 intervene for just cause. So based on what's put 18 forth in the motions for intervention, we would make 19 a decision based on that, and I do understand if 20 those parties do intervene and want to conduct 21 discovery, that may impact the balance of the 22 schedule. 23 Are there any other administrative 24 matters today, Mr. Schraff? ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 8 1 MR. SCHRAFF: A couple of other items, 2 and maybe these can be handled in part by the status 3 conference that's to be convened on June 23. 4 Currently I believe all the parties have before them 5 the application. They now have our response to staff 6 Interrogatory No. 16. They have our responses to 7 CARE discovery requests, which identify our 8 witnesses, and we've identified at least two 9 witnesses who will be presenting our case-in-chief. 10 There is a third witness we will identify 11 shortly, although it's no secret that Aaron Geckle of 12 the consulting firm URS Corporation, who should be 13 testifying in respect to much of the material that 14 was provided in response Interrogatory No. 16 as well 15 as the site selection, route selection process. 16 In looking at CARE responses to our 17 discovery, we can only identify two possible issues 18 that were identified in their discovery as being in 19 play at this time. One is that a reading of the CARE 20 discovery responses would tell us that they believe 21 an alternate route following some sort of preexisting 22 civil corridor, such as Route 11 or possibly the old 23 Rachel route line, are in some fashion preferable to 24 either the preferred or alternate route in this case. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 9 1 The other issue that we can just 2 generally discern is that they in some fashion take 3 issue with the completeness of our application and 4 the issue of whether or not we fully comply with the 5 information requirements for the application set 6 forth in the Board's rules. 7 Beyond that we are unaware of what issues 8 CARE wishes to raise in this proceeding, and we also 9 received no information as to the number or identity 10 of witnesses they intend to call in their 11 case-in-chief. We are feeling a little bit 12 constrained in terms of our ability to prepare for 13 this hearing. We don't have any idea who the 14 witnesses will be, and we are not sure whether all 15 the issues have been identified for hearing in this 16 matter. 17 I don't want to try this case by surprise 18 and get here on the hearing date only to find we have 19 new issues we weren't prepared for, so I would like 20 to suggest a couple of things. 21 THE ATTORNEY EXAMINER: Okay. 22 MR. SCHRAFF: Number one is I would like 23 to suggest that certainly no later than the status 24 conference on June 23 that all of the issues that are ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 10 1 going to be in play in this proceeding be identified 2 by all the parties. Secondly, we talked earlier, and 3 I believe the judge agreed, that in this case we're 4 going to use prefiled testimony. 5 THE ATTORNEY EXAMINER: Yes. 6 MR. SCHRAFF: If there are 7 late-developing issues, and I understand things 8 evolve and the parties may wish to raise issues that 9 haven't been identified to date, but if we're going 10 to identify issues late in the game, one suggestion I 11 have, one question I have is with respect to rebuttal 12 testimony, does the Court want prefiled rebuttal 13 testimony, and if we have late-developing issues, 14 would it be appropriate to have a break of perhaps a 15 week or two between the cases-in-chief that the 16 parties put on and then the rebuttal portion of 17 proceeding. 18 THE ATTORNEY EXAMINER: Thank you. I 19 think it's certainly reasonable to request that the 20 parties identify their issues prior to the status 21 conference, and I will also put out an entry 22 addressing that and also to explain the other agenda 23 items for the status conference, such as identifying 24 the witnesses. ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 11 1 Also it's been my experience that in the 2 case if there are some late-rising issues, that we 3 would appropriately take a break and allow parties 4 time to prepare prefiled rebuttal testimony and then 5 resume the hearing in order to do that and address 6 cross-examination or other issues. 7 I would also note if it is not possible 8 by the status conference for parties to identify 9 specific witnesses, if we would at least identify the 10 type of witness they intend to seek and the general 11 subject matter they want. It's my understanding 12 based on what CARE has filed previously in the docket 13 that they are having difficulty identifying, at least 14 at the time of the filing, identifying the witnesses. 15 Are there any other administrative 16 matters? 17 MR. LINGREN: No, your Honor. 18 MR. SCHMIDT: Your Honor, Rob Schmidt. 19 We have been negotiating with CARE over the course of 20 the last several weeks and agreed to a protective 21 order. We would request you enter in this matter for 22 purposes of protecting confidential and critical 23 infrastructure information that will be provided to 24 them as part of our discovery responses. I would ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 12 1 expect a joint motion to be filed with you asking you 2 to issue that protective order to be filed by CARE 3 and the applicants within the next day or, just so 4 you are aware that's coming. 5 THE ATTORNEY EXAMINER: Thank you. 6 Does CARE have anything they would like 7 to raise at this point? 8 MR. PARSONS: No, your Honor. What was 9 talked about with regard to identifying the issues 10 and potential witnesses, or at least the types of 11 witnesses by the status conference is obviously, I 12 think, that's fine with us. We have no objection or 13 anything to add today. 14 THE ATTORNEY EXAMINER: All right. Thank 15 you. 16 I will address the protection order once 17 it's filed in combination with items concerning the 18 purpose of the June 23 status conference and identify 19 the bridge number also. 20 Hearing no other administrative issues -- 21 I'm sorry, yes, Mr. Schraff. 22 MR. SCHRAFF: In your next entry, Judge, 23 will you identify the new public hearing dates and 24 the -- ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 13 1 THE ATTORNEY EXAMINER: Off the record 2 for a second. 3 (Discussion off record.) 4 THE ATTORNEY EXAMINER: The parties 5 discussed off the record the status of discovery and 6 other issues. Based on that information the 7 Administrative Law Judge is not inclined at this 8 point to include the local public hearing dates and 9 the evidentiary hearing date in any entry published 10 prior to the June 23 status conference. 11 Is there anything else? 12 MR. SCHRAFF: No, your Honor. 13 THE ATTORNEY EXAMINER: Thank you. 14 Hearing no other administrative matters before the 15 Ohio Power Siting Board, this hearing is adjourned 16 until further notice from the Power Siting Board. 17 Thank you. 18 (The hearing adjourned at 10:20 a.m.) 19 - - - 20 21 22 23 24 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481 14 1 CERTIFICATE 2 I do hereby certify that the foregoing is a 3 true and correct transcript of the proceedings taken 4 by me in this matter on Wednesday, May 21, 2008, and 5 carefully compared with my original stenographic 6 notes. 7 _______________________________ Rosemary Foster Anderson, 8 Professional Reporter and Notary Public in and for 9 the State of Ohio. 10 My commission expires April 5, 2009. 11 (RFA-8147) 12 - - - 13 14 15 16 17 18 19 20 21 22 23 24 ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481