bad faith and p j r though it's on the other side of this case clearly would want to do exactly the same thing under these circumstances as it did here so it starts of course with the polar vortex but it's important that it's an emergency circumstance because in the declared emergency that triggers p j arms powers to quote direct the operations of market participants which includes do so in the morning and i was more directi day is essentially say turn on it's good it clears the market and it says turn on and turn off when it needs the energy put into the grid what it did on this day that's so unique is it specifically ordered the purchase of natural gas by duke communications these phone calls in the record your honor at one forty two to one forty six i believe and there are three phone calls in rapid succession between duken p j and the key is this statement that the securing of gas not economic today every day when do secures gas is up to do and it is an economic decision by do whether to buy gas when to buy gas the whole gas buying process normally up to do and it's absolutely cannot make and everybody understands that and so when on this day they say you know we advise you to secure gas today this is not economic this is a reliability issue that's the real signal to do this is a special this is something that we must immediately obey from p j r and so that's what they did and so there's only one affidavit in the record about this we have the phone calls and then we have the affidavit of cecil from duke and he explains that that's what happened that's what he understood and he says quote i called mr maher to confirm that p j am was instructing duke to secure a gas without regard to economics he confirmed that my understanding of the situation was accurate and that's it page one thirty four of the record we have competing views of what the implications of this on this were in that  these conversations did not mean go out and buy gas then that would be subject to the substantial evidence standard and it's in our brief that way because we have to protect against the possibility the first orders will be read that way but but really guarantee reimbursement and that's it page twenty nine of the joint appendix they say page thirty one this is not a directive within the meaning of the indemnification provision so there are snippets of first orders that seem to lean toward some factual farming but i don't think that's the best way to read their orders but in any case we we address it in our brief because we have to take that chance so the scenario here so we've heard actually did say here is a couple of things first they said this is not the right kind of loss under this tariff provision but the provision refers to any and all losses any and all damages losses planes and all of the normally speaking on ordinary days on normal days most virtually all days p j young's instructions to do car turn on and turn off and it is the purchase of fuel under those circumstances is still  turn it on no your honor because a couple of reasons so first of all the ordinary so it's a staged series of communications where first it clears it's built into the market  then it clears the markets not seven pm centrally says looks like we're going to need you and then there is the notice given in the amount of time that duke has asked for before the unit is actually needing to run on this turn on turn off signal so as these communications happen it remains up to do whether to buy fuel when to buy fuel how to how to arrange its affairs to be ready to turn on like that and so what's really unique about this case and really important is that p j a is a dispatch signal it's an electronic thing that happens every five minutes and it is a part in time and space on the judgment of duke from the process of buying fuel so i mean keep in mind this provision applies to all of the generation owners and p j and there are some of these that are run by fuel or by coal there are some that are run by nuclear which have totally different fuel type situations so it isn't that put it this way i wouldn't say that in response to the electronic dispatch signal turn on but it is implementing or complying with that order for do you know sixteen hours later or a day earlier to have made a decision to purchase fuel or not to have to pay and ultimately the ratepayers the transmission customers would collect it from the ratepayers yes your honor and so but the reason p j i'm settlement in particular is sued here is that p j i'm settlement is the entity that and then in the long run from the rate payers presumably and that's how when the transmission customer owes something in the way that a generation owner gets money from the transmission customers to go through p j i'm subtle and and you can see first order didn't i believe that's an argument made by the interveners not one that's in first order so first it seems doesn't have a problem with going after p j i'm subtleness as a way to get money from the transmission customer that is a proper power so if i may i'd like to generation capacity resource to be available to every day it must come up with some way to be able to turn a generation i turned it off as instructed and said one hundred percent they have to be ready one hundred percent yes your honor that's a statements i'm looking at the transcript of these conversations all of these conversations between these two people are things like we want all units available for tomorrow yes he goes on a questions together judge hale i do think on an average day when it's not this cold and there are more there are more generous resources available p j m as a teaching i would do both be able to consider the economics of the dispatch specific instructions and p j m has denied that it issued a special reliability directive here i'm not entirely sure what it would look like but if peter ham was just hauling due to give it instruction other than turn on turn off i would look for him to say we want you to buy gas we instruct you to buy gas we direct you to buy gas something like that this was fairly close to we instruct you to buy gas respectfully your honor i disagree this is a this is a reliability directive thirty to forty hours thirty six to forty eight hours in advance and if there was any such directed it would have been for him to fiji and needed to shed load shedding load means is more commonly known as a brownout dropping saying i'm sorry could you just simply want more pointing to the actual language what's your best evidence that you were directed to by cash keeping in mind that our standard here is we're says if he's not securing gas based on economics this is not an economic decision we want all the units available if he doesn't like that he can call my manager and there are you know what's the other one and then the other one is the affidavit filed by mr cecil who is the here which is the sole affidavit in the record of this case about this about this phone conversation and what these guys actually meant to be communicating and how he understood it at that time the third maybe a statement made by p which isn't a record of one ninety one and that's where they said p j emigres duke was reasonable in relying on its communications with p j i'm dispatch and in good faith made arrangements to secure gas ok say great were available we put twenty hours notice on all of this generation so if you want us that gives us plenty of time to get the fuel during that time and of course how that happened it would drop perfectly and so that is not what they're really talking about these three phone conversation you're talking about buying gas and buying gas if you're not securing gas based on economics which which essentially means if you're not securing gas because in your judgment remember who initiated the phone calls the first phone call was again but so all of these have been within about six minutes on this morning just a few minutes after the maximum generation and who was the first one to ask a question about the need to secure their so the first one to ask the question was back because i'm not sure they're understanding what's going on here i'm going to tell them it's not an economic decision today even though every day it's economic every day it's up to duke and its economic and do people out of these long lead times but that's not what they want we have the argument thanks very much in case