Abbott Laboratories, Inc. v. Illinois Commerce Comm'n

                                             FIFTH DIVISION
                                             June   , 1997











Nos. 1-96-0265, 1-96-0266 (consolidated)

                                     
ABBOTT LABORATORIES, INC.,       )   Petition for Review
OUTBOARD MARINE CORPORATION,     )   of the Illinois
VICTORY MEMORIAL HOSPITAL,       )   Commerce Commission
NATIONAL GYPSUM COMPANY;         )   Order of November 8, 1995,
SCHULLER INTERNATIONAL, and      )   in ICC Docket No. 95-0031.
PPG INDUSTRIES, INC.,            ) 
                                 ) 
     Petitioners,                )
                                 )
v.                               )
                                 )
THE ILLINOIS COMMERCE COMMISSION,)
NORTH SHORE GAS COMPANY,         )
CITIZENS UTILITY BOARD, PEOPLE   )
OF COOK COUNTY BY JACK O'MALLEY, )
COOK COUNTY STATE'S ATTORNEY,    )
ENRON CAPITAL AND TRADE          )
RESOURCES, INC., THE PEOPLE OF   )
THE STATE OF ILLINOIS BY THE     )
ATTORNEY GENERAL JIM RYAN,       )
CHEVRON USA, INC., and MIDCON    )
GAS SERVICES CORP.,              )
                                 )
     Respondents.                )
----------------------------------------------------------------
A. FINKL & SONS, PRECOAT METALS  )   Petition for Review
COMPANY, LTV STEEL COMPANY, FORD )   of the Illinois
MOTOR COMPANY, ARCHOR-DANIELS-   )   Commerce Commission
MIDLAND COMPANY, NABISCO BRANDS, )   Order of November 8, 1995,
INC., 115TH STREET CORPORATION,  )   in ICC Docket No. 95-0032.
ACME STEEL COMPANY, ART INSTITUTE)
OF CHICAGO, BEST FOODS, A        )
DIVISION OF CIP INTERNATIONAL,   )
GENERAL MILLS, INC., GUTMANN     )
LEATHER CO., INC., HELENE CURTIS,)
INC., MIDWEST ZINC COMPANY, SIPI )
METALS CORPORATION, SOUTH CHICAGO)
PACKING CO., SWEETHEART CUP      )
COMPANY, INC., TOOTSIE ROLL      )
INDUSTRIES, INC., and WHITE CAP, )
INC.,                            )
                                 )
     Petitioners,                )
                                 )
v.                               )
                                 )
THE ILLINOIS COMMERCE COMMISSION,)
THE PEOPLES GAS LIGHT AND COKE   )
COMPANY, CITIZENS UTILITY BOARD, )
PEOPLE OF COOK COUNTY BY JACK    )
O'MALLEY, COOK COUNTY STATE'S    )
ATTORNEY, ENRON CAPITAL AND TRADE)
RESOURCES, INC., THE PEOPLE OF   )
THE STATE OF ILLINOIS BY THE     )
ATTORNEY GENERAL, JIM RYAN,      )
CHEVRON, USA, INC., BOARD OF     )
TRUSTEES OF THE UNIVERSITY OF    )
ILLINOIS, CITY OF CHICAGO,       )
COMMONWEALTH EDISON COMPANY, and )
MIDCON GAS SERVICES CORP.,       )
                                 )
     Respondents.                )

     JUSTICE HOURIHANE delivered the opinion of the court:
     In this consolidated appeal, various transportation
customers of Peoples Gas Light and Coke Company (Peoples) and
North Shore Gas Company (North Shore) appeal from two final
orders entered by the Illinois Commerce Commission (Commission)
approving a general rate increase for gas service and other
ratemaking adjustments.  For the reasons discussed below, we
affirm the orders of the Commission.
                                BACKGROUND
     On December 16, 1994, Peoples and North Shore filed requests
with the Commission for a general increase in their gas rates of
$41 million and $6.6 million, respectively, and proposed various
other changes.  The Commission conducted hearings over a six-
month period at which the Illinois Industrial Energy Consumers
and the Chicago Area Transportation Customer Coalition
(petitioners here) participated.  Also participating in the
proceedings were the Commission's Staff, the Citizens Utility
Board (CUB), the Illinois Attorney General, the Cook County
State's Attorney, and Midcon Gas Services Corp. (Midcon), among
others.  In two separate orders entered November 8, 1995, the
Commission granted Peoples a $30.8 million rate increase and
North Shore a $5.5 million rate increase.  The Commission denied
petitioners' applications for rehearing and this appeal followed. 
220 ILCS 5/10-201 (West 1994); 155 Ill. 2d R. 335.
     The Commission decided a number of issues common to both
proceedings which petitioners challenge on review.  First, the
Commission approved an unauthorized use penalty of $6 per therm
on critical days, and 50 cents per therm on non-critical days. 
The unauthorized use charge had previously been set at $1 per
therm, with no distinction for critical versus non-critical days. 
Petitioners challenge the statutory authority of the Commission
to establish a non-cost-based penalty, and assert that the
adoption of the higher penalty is not supported by substantial
evidence.
     Second, the Commission adopted the "average and peak" method
for allocating transmission and distribution costs among customer
classes, rather than the "coincident peak" method, and rejected
the use of a "pressure differential" factor.  Petitioners contend
that the Commission's decision is not supported by substantial
evidence.
     Finally, the Commission approved a one-third allowable bank
monthly withdrawal restriction for transportation customers
during the winter months.  Petitioners again assert that the
Commission's decision is not supported by substantial evidence.
                                 ANALYSIS
                       I.  Unauthorized Use Penalty
     The purpose behind an unauthorized use penalty is to
minimize unauthorized gas use by encouraging transportation
customers to contract for a prudent level of standby service. 
Large volume transportation customers, such as petitioners,
procure their own gas supply.  This customer-owned gas is
transported via interstate pipelines to the Peoples and North
Shore systems which, in turn, deliver the gas to the customers'
premises.  When a customer's own gas supply is insufficient to
meet its requirements, Peoples and North Shore are obligated to
provide company-owned gas to the extent of the standby service
for which the customer has contracted.  Transportation customers
who take gas in excess of their contractual limit are subject to
an unauthorized use charge.  Provision of gas service beyond a
customer's contractual limits requires the utility companies to
use additional "no-notice" services, i.e., contracts with other
pipelines to provide gas up to specified entitlements without
incurring penalties.
     By its orders of November 8, 1995, the Commission approved
an unauthorized use charge of $6 per therm on critical days and
50 cents per therm on non-critical days, replacing the then
prevailing unauthorized use charge of $1 per therm.  The
Commission's orders state that "the unauthorized use charge is a
penalty and, thus, should not be cost-based."  Petitioners argue
that the Commission lacks the jurisdiction or authority under the
Act to create and impose such a penalty and thus, under well
settled law, its orders are void.  See Business & Professional
People v. ICC, 136 Ill. 2d 192, 244, 555 N.E.2d 693 (1990).  The
Commission counters that petitioners waived this issue on appeal
by failing to raise it in their petitions for rehearing before
the Commission (see 220 ILCS 5/10-113 (West 1994)), and that, in
any event, the unauthorized use penalty was a valid exercise of
the Commission's authority.
     Section 10-201(e) of the Public Utilities Act (Act) (220
ILCS 5/1-101 et seq. (West 1994 and Supp. 1995)) sets forth the
powers and duties of a reviewing court and specifically provides
that the court shall reverse an order of the Commission if, among
other things, "the order or decision is without the jurisdiction
of the Commission".  220 ILCS 5/10-201(e)(iv)(B) (West 1994). 
The "jurisdiction" of the Commission includes three aspects:
          "(1) personal jurisdiction--the agency's authority
          over the parties and intervenors involved in the
          proceedings, (2) subject matter jurisdiction--the
          agency's power 'to hear and determine causes of
          the general class of cases to which the particular
          case belongs' [citation], and (3) an agency's
          scope of authority under the statutes."  Business
          & Professional People v. ICC, 136 Ill. 2d  at 243.
Here, it is the third aspect of the Commission's jurisdiction
which petitioners challenge.
     Significantly, section 10-113 of the Act expressly limits
the scope of this court's review to those issues raised in the
petition for rehearing.  220 ILCS 5/10-113 (West 1994).
Generalized contentions that a decision of the Commission is
unlawful will not preserve particular issues for review.  Rather,
section 10-113 of the Act requires express mention of grounds for
review in the petition for rehearing.  Citizens Utility Board v.
ICC, 166 Ill. 2d 111, 136, 651 N.E.2d 1089 (1995).  Thus, where a
petitioner, in its application for rehearing, asserts only that
the Commission erred as a matter of law, but does not expressly
challenge the Commission's decision as beyond its statutory
authority, such argument will be deemed waived for purposes of
review.  Citizens Utility Board v. ICC, 166 Ill. 2d  at 134-36.  
     Here, the petitions for rehearing before the Commission
raised numerous matters but did not specifically raise the issue
of the Commission's statutory authority to impose an unauthorized
use penalty.  Peitioners' generalized contentions that the
Commission's decision is "contra to the law" is plainly
insufficient to preserve the issue for review.  Accordingly,
petitioners waived any argument that the Commission's adoption of
the penalty was outside the scope of its authority.  See Citizens
Utility Board v. ICC, 166 Ill. 2d  at 134-36.  
     Even if not waived, the Commission's decision to establish a
non-cost-based unauthorized use penalty is a valid exercise of
its authority.  An unauthorized use charge is not a new concept
among public utilities in this state.  The Commission has
approved unauthorized use charges on a utility-specific basis
since prior to 1984.  See Re Peoples Gas Light and Coke Co., 63
PUR 4th 304 (Ill.C.C., Aug. 30, 1984) (approving unopposed
increase in unauthorized use charge from 96.92 cents per therm to
$1 per therm).  Further, since at least 1989, the Commission has
approved unauthorized use charges that are not tied to strict
cost-based pricing concepts, instead setting charges at a level
sufficient to encourage customers to comply with their designated
backup service levels.  See Re Northern Illinois Gas Co., 103 PUR
4th 290 (Ill.C.C., June 21, 1989) (approving non-cost-based $1
per therm unauthorized use charge); Re Comprehensive Statewide
Plan for Natural Gas Utilities, 117 PUR 4th 16 (Ill.C.C. Oct. 3,
1990) (adopting statewide plan for natural gas utilities
providing, inter alia, for individual, utility-specific
proceedings to consider mandatory backup provisions and/or
effective penalties to prevent the unauthorized use of gas by
transportation customers).  Although the past practice of the
Commission approving unauthorized use penalties is not
dispositive of whether the Commission has such authority under
the Act, it is noteworthy that the decision of the Commission
which is challenged here does not represent a radical departure
from prior agency action.  
     We also observe that although this court has never been
faced with a direct challenge to the Commission's authority to
impose such a penalty, this court has implicitly recognized the
Commission's authority to do so.  See Governor's Office of
Consumer Services v. ICC, 242 Ill. App. 3d 172, 607 N.E.2d 1322
(1992).  As explained below, we now explicitly recognize the
Commission's authority to approve a non-cost-based unauthorized
use charge.  
     The Commission possesses plenary power under the Act with
respect to the supervision of public utilities, including the
power to establish reasonable rates and charges for service. 
People v. City of Chicago, 349 Ill. 304, 346, 182 N.E.2d 419
(1932); 220 ILCS 5/4-101 and 5/9-250 (West 1994).  "Rate" is
defined under the Act as:
               "[E]very individual or joint rate, fare,
          toll, charge, rental or other compensation of any
          public utility or any two or more such individual
          or joint rates, fares, tolls, charges, rental or
          other compensation of any public utility or any
          schedule or tariff thereof, and any rule,
          regulation charge, practice or contract relating
          thereto."  220 ILCS 5/3-116 (West 1994).
     Our supreme court has held that the "statutory authority to
approve rate schedules embraces more than the authority to
approve rates fixed in terms of dollars and cents."  City of
Chicago v. ICC, 13 Ill. 2d 607, 611, 150 N.E.2d 776 (1958). 
Thus, "rate" has been broadly construed by Illinois courts to
include an automatic adjustment clause (City of Chicago v. ICC,
13 Ill. 2d 607) and "refunds which affect the ultimate price paid
by ratepayers" (Illinois Bell Telephone Co. v. ICC, 203 Ill. App.
3d 424, 437, 561 N.E.2d 426 (1990)).  Similarly, although not
expressly set forth in the Act, the Commission's ratemaking
authority also includes credit regulation.  Accordingly, the
Commission has the authority to require cash security deposits
for customers who have made late payments.  Moenning v. Illinois
Bell Telephone Co., 139 Ill. App. 3d 521, 525, 487 N.E.2d 980
(1985).
     Notwithstanding the broad powers of the Commission,
petitioners contend that there is no express authorization in the
statute for imposing such a penalty, and that remedial civil
sanctions may only be imposed by a regulatory agency where the
agency's enabling statute so authorizes.  See Larkin v. Hartigan,
250 Ill. App. 3d 969, 976, 620 N.E.2d 598 (1993).  While
petitioners are correct that there is no express authorization in
the Act, it is a well established rule that the express grant of
authority to an administrative agency also includes the authority
to do what is reasonably necessary to accomplish the
legislature's objective.  Lake County Board of Review v. Property
Tax Appeal Board, 119 Ill. 2d 419, 427, 519 N.E.2d 459 (1988). 
See also Moening v. Illinois Bell Telephone Co., 139 Ill. App. 3d
at 525 (ICC has broad discretion to regulate the rate policies of
public utilities).  Thus, in Peoples Gas, Light & Coke Co. v.
ICC, 175 Ill. App. 3d 39, 529 N.E.2d 671 (1988), this court held
that the Commission was not limited to any set of methods to
achieve the legislative objective of securing meter accuracy and
upheld a rule imposing a so-called penalty against a gas company
for meter failure.  This court stated:
               "While the legislature provided many explicit
          sanctions which may be employed by the Commission,
          the legislature expressed no intent to limit the
          Commission to the numerated methods of
          enforcement.  We do not find the legislature
          implied in the Act any intent to limit the
          Commission to any set of specific procedures. 
          Rather, we believe the legislature implicitly
          authorized the Commission to formulate rules
          necessary to secure meter accuracy, a goal
          specifically mentioned by the legislature." 
          Peoples Gas, Light & Coke Co. v. ICC, 175 Ill.
          App. 3d at 52.
     The provision of adequate, reliable and efficient energy
services, also specifically mentioned by the legislature (see 220
ILCS 5/1-102 (West Supp. 1995)), is no less an important
objective than meter accuracy.  Such objective cannot be realized
under circumstances which encourage transportation customers to
take gas to which they are not contractually entitled, thus
forcing public utilities to draw on additional no-notice services
at additional costs.  The operational integrity of the public
utility systems should not be compromised in this fashion. 
Rather, transportation customers should be encouraged to engage
in efficient operational planning, including the nomination of
appropriate levels of standby service.  We believe an
unauthorized use charge which is not specifically tied to the
public utilities' costs for securing additional no-notice
services is reasonably related to this purpose.  Accordingly,
although not expressly provided under the Act, we find that the
Commission's approval of a non-cost-based penalty was within its
broad ratemaking authority and that the Commission appropriately
exercised its discretion to formulate reasonable methods of
achieving stated legislative objectives.  
     Petitioners assert that, even if the Commission has the
authority to approve an unauthorized use penalty, its approval of
an increase in the penalty to $6 per therm is not supported by
"substantial evidence."  See 220 ILCS 5/10-201(e)(iv)(A) (West
1994).  On review of an order of the Commission, "findings and
conclusions of the Commission shall be held prima facie to be
true" and "rules, regulations, orders or decisions of the
Commission shall be held to be prima facie reasonable".  220 ILCS
5/10-201(d) (West 1994).  The burden of proof as to all issues
raised on appeal is on the appellant.  220 ILCS 5/10-201(d) (West
1994).  
     An order of the Commission shall be reversed if it is not
supported by substantial evidence.  220 ILCS 5/10-201(e)(iv)(A)
(West 1994).  "Substantial evidence" has been defined as:
          "[E]vidence which a reasoning mind would accept as
          sufficient to support a particular conclusion and
          consists of more than a mere scintilla of evidence
          but may be somewhat less than a preponderance." 
          Central Illinois Public Service Co. v. ICC, 268
          Ill. App. 3d 471, 479, 644 N.E.2d 817 (1994).
In determining whether substantial evidence exists, this court
must not conduct its own investigation, nor should it substitute
its judgment for that of the Commission.  Central Illinois Public
Service Co. v. ICC, 268 Ill. App. 3d at 479.
     The Commission was presented with various proposals
regarding the unauthorized use charge and heard testimony from
numerous witnesses.  Peoples and North Shore proposed an increase
in the critical day penalty to $10 per therm, which was later
reduced to $6 per therm.  MidCon proposed a two-tier approach: $1
per therm for the first offense and, after 24 hours' written
notice, $10 per therm.  Petitioners recommended a charge equal to
the greater of $1 per therm or the ratable share of any penalties
actually incurred by Peoples and North Shore.
     The evidence established that in fiscal 1994, there were
draws of unauthorized gas from the North Shore system in excess
of 880,000 therms.  On the Peoples system, unauthorized takes
more than tripled from fiscal 1993 to fiscal 1994, with no
significant disparity in winter temperatures.  According to a
MidCon representative, many transportation customers have elected
reduced or zero standby service, using North Shore and Peoples as
cheap back-stop services.
     Sharon Donofrio, Superintendent of the rates departments at
Peoples and North Shore, testified that the current charge is too
low to provide an appropriate disincentive to unauthorized gas
use.  She testified that absent such a disincentive,
transportation customers may plan on using unauthorized gas to
meet their peak demand.  Although the charge should reflect the
costs associated with no-notice services, she stated that the
charge should not be designed on a cost basis.
      Commission Staff witness Richard Zuraski advocated a
compromise between a cost-based approach and a penalty approach. 
He recommended a $6 per therm critical-day charge.  Peoples and
North Shore concurred.  
     Petitioners focus on evidence that Peoples and North Shore
have never terminated a transportation customer because its
unauthorized gas use endangered the system, although under their
tariffs, Peoples and North Shore have the right to do so.  They
also point to a lack of evidence that transportation customers
will plan to rely on unauthorized use gas, rather than purchase
standby service, unless the charge is raised substantially.  They
further argue that there is no evidence supporting an increase of
this magnitude.  We disagree.
     A party who challenges a decision of the Commission on the
basis that it is not supported by substantial evidence must do
more than show that the evidence supports a different conclusion. 
It must demonstrate that the opposite conclusion is clearly
evident.  Continental Mobile Telephone Co. v. ICC, 269 Ill. App.
3d 161, 171, 645 N.E.2d 516 (1994).  Petitioners have failed to
cite to any evidence which clearly supports the conclusion either
that no increase was necessary, or that any increase should
necessarily be set at an amount less than $6 per therm.   Rather,
the evidence demonstrates that, notwithstanding the existing $1
per therm penalty, there continues to be substantial draws of
unauthorized gas.  If transportation customers wish to take gas
to which they have no contractual entitlement, then they should
properly pay for such service.  A $6 per therm critical day
charge reflects the low-end of the utilities' asserted yearly
costs associated with no-notice services.  We find nothing
inconsistent about the Commission's adoption of a penalty which,
while not cost-based, nonetheless reflects the Commission's
awareness of certain cost factors.  We are mindful that the
ultimate purpose of the penalty is to discourage unauthorized gas
use so that the reliability of the system is preserved. 
Accordingly, we cannot say that the $6 per therm critical-day
penalty is not supported by substantial evidence.
     Petitioners further maintain that the Commission's approval
of a $6 per therm penalty represents a drastic departure from
past agency decisions approving a $1 per therm penalty for North
Shore and Peoples, and that the Commission's decision is,
therefore, entitled to less deference on review.   We note first
that the Commission is not subject to res judicata.  Governor's
Office of Consumer Services v. ICC, 242 Ill. App. 3d at 189. 
Thus, prior agency decisions approving a lesser charge are not
binding on the Commission in this case.  Further, only where the
Commission departs from its "usual rules of decision to reach a
different, unexplained result in a single case", thus depriving a
party of equal treatment before the Commission, will its decision
be entitled to less deference on review.  Central Illinois Public
Service Company v. ICC, 268 Ill. App. 3d at 479.  See also 
United Cities Gas Co. v. ICC, 225 Ill. App. 3d 771, 782, 589 N.E.2d 581 (1992) (Commission may not depart from prior practices
and customs in interpreting its procedural rules, especially
where there may have been detrimental reliance on such prior
agency interpretations). 
     The Commission's decision here is not based on a new and
different interpretation of a prior rule, but rather is based on
the Commission's longstanding policy of deterring transportation
customers from taking unauthorized gas through the imposition of
an appropriate charge.  All that has changed is the amount of the
charge.  Accordingly, we view the Commission's November 8, 1995
orders as entirely consistent with its prior decisions.
     Petitioners also contend that the Commission failed to take
into account the impact the penalty would have on transportation
customers in violation of section 9-201(c) of the Act.  They
argue that the only impact evidence offered was through
petitioners' witness, Dr. Alan Rosenberg, but that the
Commission's order does not discuss his testimony.  Dr. Rosenberg
testified that under the utilities' original $10 per therm
critical day penalty, and "absent customers purchasing some form
of protection *** a typical transportation customer could
conceivably incur enough penalties in just seven days, to double
its total annual gas budget," and that "the penalty in a single
month could put a customer in financial difficulty." (emphasis
original)
     Section 9-201 provides that "[i]f the Commission enters upon
a hearing concerning the propriety of any proposed rate or other
charge, classification, contract, practice, rule or regulation,
the Commission shall establish the rates or other charges ***
which it shall find to be just and reasonable. ***."  220 ILCS
5/9-201(c) (West 1994).  A determination of what is "just and
reasonable" involves a balancing by the Commission of the
interests of the utilities' stockholders and the utilities'
consumers.  Citizens Utility Board v. ICC, 276 Ill. App. 3d 730,
736-37, 658 N.E.2d 1194 (1995).  "The Commission cannot fulfil
its statutory duty to balance the competing interests of
stockholders and ratepayers without taking into account the
impact of proposed rates on ratepayers."  Citizens Utility Board
v. ICC, 276 Ill. App. 3d at 737.   
     The fact that the Commission's orders do not expressly
mention Dr. Rosenberg's testimony does not mean that the
Commission did not consider such evidence.  Under the Act, the
Commission is required to "make and render findings concerning
the subject matter inquired into and enter its order based
thereon."  220 ILCS 5/10-110 (West 1994).  The Commission is not
required to make particular findings as to each evidentiary fact
or claim, nor is the Commission required to disclose its mental
operations.  Lefton Iron & Metal Co. v. ICC, 174 Ill. App. 3d
1049, 1055-56, 529 N.E.2d 610 (1988).   The Commission need only
set forth the facts which form the basis for the order so that
informed review is not hindered.  Lefton Iron & Metal Co. v. ICC,
174 Ill. App. 3d at 1055.  
     The record discloses that the Commission considered at
length the evidence offered as to various existing and proposed
methods for avoiding the unauthorized use charges, and reasonably
determined that the options offered by Peoples and North Shore
provided sufficient opportunity for customers who prudently
manage their gas accounts to avoid such charges.   While the
Commission's orders do not specifically refer to Dr. Rosenberg's
testimony, we believe the Commission adequately considered the
impact the proposed penalty would have on transportation
customers and that the Commission fulfilled its duty under
section 9-201 of the Act.
     Based on the foregoing, that part of the Commission's order
approving an unauthorized use penalty of $6 per therm on critical
days and 50 cents per therm on non-critical is affirmed.
                 II.  Transmission and Distribution Costs
     Petitioners next contend that the Commission's adoption of
the "average and peak" (A&P) method for allocating transmission
and distribution (T&D) investment among customers, as opposed to
the "coincident peak" (CP) method proposed by petitioners, is not
supported by substantial evidence.  Under the CP method, T&D
costs are allocated based on the demand for gas of each customer
class at the time of design day system peak, i.e., the one day of
the year when the public utility experienced the highest usage
for all classes.  The A&P method allocates T&D costs based on
both peak demand and average demand.
     The Commission rejected the notion that all T&D costs are
peak related and adopted the A&P method, weighting the average
and peak portions at 74.44% and 25.56%, respectively.  This was
the allocation proposed by Staff.  CUB, the Illinois Attorney
General, and the Cook County States Attorney also advocated
adoption of the A&P method, although weighting average and peak
demand differently.
     We disagree with petitioners that the Commission's findings
are insufficient to permit informed judicial review.  The
Commission's Orders reflect careful consideration of the issues
and the ample testimony received on the appropriateness of the
two approaches.  The Commission's findings and basis for its
decision are sufficiently specific and do not impede review by
this court.  See Lefton Iron and Metal Co. v. ICC, 174 Ill. App.
at 1055-56.  
     We also find that the Commission's adoption of the A&P
method is supported by substantial evidence.  There was testimony
from a number of sources that the CP method reflects too narrow
an approach to cost allocation by not taking into account the
range of non-peak related factors, reflected in the A&P approach,
which determine T&D investment.  While the Commission also heard
contrary testimony, we cannot say that the opposite conclusion is
clearly evident.  See Continental Mobile Telephone Co. v. ICC,
269 Ill. App. 3d at 171.  We note, too, that the Commission's
findings are entitled to considerable deference when, as here,
they involve the assessment of highly technical data.  Illinois
Bell Telephone Co. v. ICC, 203 Ill. App. 3d 424, 442, 561 N.E.2d 426 (1990).  
     Further, we disagree with petitioners' contention that the
Commission's rejection of a "pressure differential factor" was
not supported by substantial evidence.  The use of a pressure
differential factor is intended to adjust T&D costs to reflect
the fact that large volume customers take gas only from high
pressure mains and therefore should not be assessed those costs
associated with the intermediate and low pressure mains which
serve other classes of customers.  
     As to this issue, the Commission concurred with the view
expressed by CUB witness Steven Ruback.  Ruback is an engineer,
specializing in public utility issues, with 15 years' experience
as a consultant to municipal utilities and governmental agencies. 
He testified that for distribution purposes the system may
operate as three separate systems at three different pressure
levels, but that for economic purposes the system is an
integrated web.  He further testified that the larger mains would
not exist but for the prior improvements made possible because of
revenues from all customer classes and that new main extensions
benefit from the existing service regardless of whether it was
installed for large or small customers.  He opined that "[i]t
would be a complete irony for small customers to be allocated
more costs when their combined load may have justified the large
mains from which the large customers take service."  He
concluded, therefore, that a pressure differential adjustment was
inappropriate when allocating T&D investment.  
     The Commission also heard from petitioners' witness, John
Mallinckrodt, an engineer experienced in pipeline design,
construction and operations, who has held various positions with
Peoples.  Mallinckrodt testified that the Peoples and North Shore
systems are designed and built to operate at three distinct
pressure levels and that customers who take off the high pressure
mains cannot and do not utilize the intermediate and low pressure
mains.   Accordingly, a pressure differential adjustment reflects
the operational reality of the Peoples and North Shore systems.  
Staff witness, Lazare, also supported such an adjustment.
     As previously stated, when reviewing an order of the
Commission, the standard is not whether the evidence could
support another conclusion, but whether the opposite conclusion
is clearly evident.  Continental Mobile Telephone Co. v. ICC, 269
Ill. App. 3d at 171.  Moreover, it is not the function of this
court to reweigh the evidence.  Illinois Power Co. v. ICC, 254
Ill. App. 3d 293, 308, 626 N.E.2d 713 (1994).  Accordingly, we
find that the Commission's rejection of a pressure differential
factor was not error.   
                           III.  Allowable Bank
     Petitioners' final contention is that the Commission's
decision to restrict winter period withdrawals from a customer's
allowable bank is not supported by substantial evidence.  An
"allowable bank" is a type of gas storage account in which
deliveries of customer-owned gas in excess of customer usage are
accounted.  When deliveries of customer-owned gas are
insufficient to meet a transportation customer's usage, the
customer may, within certain limitations, draw upon the
previously delivered gas that is accounted for in its allowable
bank.  The withdrawal rights of the customer must not exceed the
utilities' ability to draw on its storage services to meet the
demand.
     The restriction approved by the Commission is the lesser of
actual inventory or one-third of the customer's allowable bank. 
The Commission determined that this restriction mirrors the
restrictions on the services the utilities use to support the
allowable bank.  The Commission further found that the historical
data petitioners presented in opposition to any restriction does
not support the conclusion that the one-third limit would never
be breached absent a tariff restriction.  We find the
Commission's decision is based on substantial evidence and should
stand.  
                                CONCLUSION
     For the reasons stated, we affirm the decision of the
Commission in all respects.
     AFFIRMED.