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06/04/97 PENNSYLVANIA POWER & LIGHT COMPANY v.

June 4, 1997

PENNSYLVANIA POWER & LIGHT COMPANY, PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT



Appealed From No. A-110500F0224, F0229, F0230, F0231, F0232. State Agency Pennsylvania Public Utility Commission.

Before: Honorable Doris A. Smith, Judge, Honorable James R. Kelley, Judge, Honorable Silvestri Silvestri, Senior Judge. Opinion BY Senior Judge Silvestri. Judge Leadbetter did not participate in the decision in this case.

The opinion of the court was delivered by: Silvestri

OPINION BY SENIOR JUDGE SILVESTRI

Filed: June 4, 1997

Pennsylvania Power & Light Company (PP&L) petitions for review of an order of the Pennsylvania Public Utility Commission (PUC) which, in part, adopted the initial decision of the administrative law Judge (ALJ), denied PP&L's application to construct a 69 kV (69,000 volt) transmission line, and denied PP&L's application to exercise eminent domain powers over two properties in order to complete the requested construction. *fn1

A brief summary of the factual background in this matter is as follows. On February 6, 1995, PP&L filed an application with the PUC requesting its approval for the construction of a 69 kV transmission line to be located in Franklin Township, Mahoning Township and Lehighton Borough, Carbon County, Pennsylvania. On February 27, 1995, a protest was filed against PP&L's application by Dan and Cheryl Kunkle. Thereafter, on April 18, 1995, PP&L filed two applications to exercise eminent domain powers to obtain rights-of-way over the properties of Marion and Sandra Walker and Frank A. Renner, Jr. in order to construct the requested transmission line. *fn2 PP&L's application for the construction of the transmission line and its condemnation applications were consolidated before the ALJ.

Evidentiary hearings were held on November 14 and 15, 1995, following which, the ALJ issued his initial decision denying both PP&L's application to construct the power line, and, in turn, its applications to exercise the power of eminent domain. The ALJ denied PP&L's application based solely upon his Conclusion that PP&L failed to demonstrate "need" for the transmission line "from an engineering perspective." The ALJ set forth the following, relevant, Conclusions of law:

2. An applicant seeking permission to construct a transmission line must show that the proposed line is necessary from an engineering perspective. Re West Penn Power Co., 54 Pa. PUC 319, 327 (1980). The relative cost of the applicant's proposal and other alternatives is a factor in that determination. West Penn, 54 Pa. PUC at 326.

3. PP&L has failed to establish that the proposed line is necessary from an engineering perspective, and has failed to establish, by credible evidence, that the proposed line is less expensive than the alternative answer to Lehighton's need for additional power, namely, reinforcement of the existing 12 kV system.

4. PP&L's Certification Application and remaining Condemnation Applications should be denied.

(ALJ's Initial Decision, p. 21-22).

PP&L filed exceptions to the ALJ's decision, which, as noted, the PUC adopted in part. The PUC concluded, as did the ALJ, that the evidence presented by PP&L for the construction of the proposed transmission line failed to demonstrate "need" from an "engineering" prospective, and that, accordingly, its application should be denied. The PUC entered its order to this effect on September 9, 1996. It is from this order that PP&L appeals here.

PP&L, in its brief to this court, raises only one question for our review, *fn3 namely:

Whether the Pennsylvania Public Utility Commission failed to properly apply the correct legal standard in reviewing a proposed transmission line construction project, where the Commission refused to consider evidence regarding customer choice and competition and ...


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