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Hess v. Pennsylvania Public Utility Commission

Commonwealth Court of Pennsylvania

December 22, 2014

Marvin Roger Hess and Leona Hess, Ronald and Dianne Mace, Roy and Cindy Maurer, the Shoop Family Trust c/o Edwin and Denny Shoop, and Gary and Dorene Lahr, Petitioners
v.
Pennsylvania Public Utility Commission, Respondent

Argued June 18, 2014

Page 247

[Copyrighted Material Omitted]

Page 248

Appealed from No. A-2011-2267349, A-2011-2267352, A-2011-2267353, A-2011-2267416, A-2011-2267418, A-2011-2267426, A-2011-2267429, A-2011-2267446, and A-2011-2267448. State Agency: Pennsylvania Public Utility Commission.

Scott T. Wyland, Harrisburg, for petitioners.

Krystle J. Sacavage, Assistant Counsel, Harrisburg, for respondent.

David B. MacGregor, Philadelphia, for intervenor PPL Electric Utilities.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge.

OPINION

Page 249

BERNARD L. McGINLEY, Judge

Marvin Roger Hess and Leona Hess, Ronald and Dianne Mace, Roy and Cindy Maurer, The Shoop Family Trust c/o Edwin and Denny Shoop, and Gary and Dorene Lahr (Protestants) Petition for Review of the Order of the Pennsylvania Public Utility Commission (Commission) which approved the Applications of PPL Electric Utilities Corporation (PPL)[1], to exercise the power of eminent domain to acquire rights-of-way and easements over certain lands of Protestants for construction of a new eleven-mile transmission line and substation.

PPL is a public utility and an electric distribution company as defined in Sections 102 and 2803 of the Public Utility Code (Code), 66 Pa. C.S. § § 102, 2803. PPL is also a " public utility corporation" as defined in Section 1103 of the Business Corporation Law of 1988 (BCL), 15 Pa. C.S. § 1103. PPL furnishes electric distribution, transmission, and supplier of last resort services in a service area covering all or part of twenty-nine counties in eastern and central Pennsylvania.

Relevant Statutory Law

PPL is statutorily obligated to provide " safe and reliable" service to its customers. Section 1501 of the Code provides, in relevant part, as follows:

Every public utility shall furnish and maintain adequate, efficient, safe and reasonable service and facilities and shall make all such repairs, changes, alterations, substitutions, extensions, and improvements in or to such service and facilities as shall be necessary or proper for the accommodation, convenience, and safety of its patrons, employees, and the public. Such service also shall be reasonably continuous and without unreasonable interruptions or delay.

66 Pa. C.S. § 1501.

To meet this obligation, the BCL authorizes public utility corporations, like PPL, to:

(a) ... take, occupy and condemn property for one or more of the following principal purposes and ancillary purposes reasonably necessary or appropriate for the accomplishment of the principal purposes:
* * * *
(3) The production, generation, manufacture, transmission, storage, distribution, or furnishing of ... electricity ....

15 Pa. C.S. § 1511(a)(3). (Emphasis added.)

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Before PPL may exercise its power of eminent domain, it must first seek and obtain a certificate of public convenience for approval from the Commission. The BCL provides the Commission with the power to authorize the condemnation of property as necessary for construction of the transmission line if the Commission determines that the service to be furnished by the utility is " necessary or proper for the service, accommodation, convenience, or safety of its patrons, employees and the public:"

(c) Public Utility Commission Approval.

The powers conferred by subsection (a) may be exercised to condemn property outside the limits of any street, highway, water or other public way or place for the purpose of erecting poles or running wires or other aerial electric, intrastate aerial telephone or intrastate aerial telegraph facilities only after the Pennsylvania Public Utility Commission, upon application of the public utility corporation, has found and determined, after notice and opportunity for hearing, that the service to be furnished by the corporation through the exercise of those powers is necessary or proper for the service, accommodation, convenience or safety of the public....

15 Pa. C.S. § 1511(c). (Emphasis added.)

Here, PPL seeks to condemn certain portions of properties owned by Protestants to construct a new 11.54 mile long 69 kilovolt (kV) transmission[2] tie line known as the Richfield-Dalmatia 69 kV Tie Line (hereinafter " New Transmission Tie Line" ) and a new Meiserville 69 12 kV Substation[3] (hereinafter " New Substation" ).

PPL's Applications Pursuant to 15 Pa.C.S. § 1511(c)

In October 2011, PPL filed ten Applications with the Commission pursuant to 15 Pa.C.S. § 1511(c) seeking approval to condemn portions of Protestants' properties to accommodate the New Transmission Tie Line and New Substation.[4]

In its Application, PPL stated that the purpose of the New Transmission Tie Line and New Substation is " to resolve violations of reliability standards set forth in PPL Electric's Reliability Principles & Practices Manual (RP& P Guidelines) applicable to 69 kV transmission lines and 12 kV distribution lines." Application of PPL Electric Utilities Corporation (Application), October 11, 2011, ¶ 10 at 4; Reproduced Record (R.R.) at 18a. The New Transmission Tie Line will connect the existing Juniata-Richfield 69 kV line with the existing Sunbury-Dauphin 69 kV line. According to PPL's " Necessity Statement," the project, which will cross Protestants' properties, is required to " improve reliability in both PPL's transmission and distribution systems to adhere to PPL's RP& P [Guidelines]." Necessity Statement attached to Application as Exhibit No. 1, at 4; R.R. at 58a.

With regard to meeting transmission standards, PPL averred that in the event

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of an outage on the existing Juniata-Richfield 69 kV transmission line, approximately forty-four megawatts (MW) of load would remain interrupted until repairs were completed or additional reinforcements were provided. This would be a violation of the RP& P Guidelines.[5] An outage on the Sunbury-Dauphin 69 kV transmission line would cause approximately ten MW of load to remain interrupted until repairs were made and field switching is completed. Although this particular situation on the Sunbury-Dauphin line is not a violation of PPL's RP& P Guidelines, an outage encountered under 2012 peak conditions on the Sunbury-Dauphin 69 kV line due to a line failure would result in approximately thirty-three MW of load to remain interrupted after all field switches are complete. This is a violation of the RP& P Guidelines. The proposed project will resolve these load restoration issues with the Sunbury-Dauphin line.

PPL stated that the proposed New Transmission Tie Line will provide for quick restoration of electric service by providing additional transmission capacity and load transfer capability for loss of either the Juniata-Richfield 69 kV line or the Sunbury-Dauphin 69 kV line. It will reduce the duration of any outage by improving PPL's ability to transfer load from one transmission line to another in the event of an outage on either the Juniata-Richfield 69 KV line or the Sunbury-Dauphin 69 kV line.

With regard to meeting standards at the distribution level, PPL indicated that the existing " Dalmatia 36-02" 12 kV distribution line which services a substantial area violated " several guidelines of PPL Electric's RP& P [Guidelines], and it has been among the worst performing lines on PPL Electric's system." Application ¶ 19, at 6; R.R. at 20a. PPL's RP& P Guidelines provide that " no more than 1,300 customers should be served from a 12 kV circuit, and that a 12 kV circuit should not supply more than 50 circuit miles of distribution lines." Application ¶ 20, at 6; R.R. at 20a. " The Dalmatia 36-02 12 kV distribution line currently exceeds PPL Electric's RP& P guidelines. The 12 kV line currently serves more than 2,200 customers and supplies 194 circuit miles of distribution lines." Application ¶ 20, at 6; R.R. at 20a.

PPL explained that the New Substation will enable PPL to split the " Dalmatia 36-02" 12 kV distribution line by adding two new 12 kV distribution lines. This reinforcement will reduce the customer count per feeder and circuit miles of the existing " Dalmatia 36-02" 12 kV distribution line. The objective being to reduce the number of customers affected during any outage.

PPL provided an in-depth analysis of three proposed routes for the new line and substation and concluded that the route over portions of Protestants' properties was the best route.

PPL further averred that it considered various functional alternatives to resolve the violations of its RP& P Guidelines. After extensive analysis, PPL concluded that the preferred configuration was to construct the New Transmission Tie Line and New Substation. The project will improve the integrity of the system and resolve all of the RP& P Guideline 69 kV transmission violations by providing additional transmission capacity and load transfer capability. Application ¶ ¶ 24-25,

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at 6-7; R.R. at 20a-21a. The New Substation will resolve the RP& P distribution system guideline violations for customer count per feeder and circuit line miles. The estimated cost of the project is $12 million.

Protestants and others filed preliminary objections to PPL's application for eminent domain approval because PPL did not establish that the project was " necessary" or that there was a " need" for it.

Two Administrative Law Judges were assigned to conduct hearings between March 2012, and September 2012. In March 2012, nineteen citizens, including Protestants, gave public comment. Many stated that outages and reliability are not a concern in the area. The consensus among the objectors was that there is no legitimate need for the project and that PPL based its evaluation of need on uncorroborated data and its own RP& P Guidelines and internal quality standards. Public Input Hearing Transcript, March 7, 2012, at 50-74; R.R. at 282a-298a.

The parties also submitted written direct, rebuttal, and rejoinder testimony.

Gopi Kedia (Kedia), a Principal Engineer for PPL, explained that PPL's RP& P Guidelines were developed " to ensure adequate and appropriate levels of electric service consistent with good utility practice. Specifically, the process assures that PPL Electric's transmission and distribution systems can supply all customer load in a way that is reliable and economical." Direct Testimony of Gopi R. Kedia, at 4; R.R. at 34a.

Kedia explained that PPL's transmission systems are planned so that they meet the following guidelines:

1. Normal operation of the system will not load any electric facility beyond its normal continuous rating.
2. In the case of an outage on a single circuit 69 kV transmission line, 60 MW of load can be interrupted for up to 2 hours. After 2 hours, 30 MW of load must be restored by field switching to adjacent transmission lines. After 10 hours, all load must be restored.
3. Large scale, long-term or frequent interruptions and excessive load loss are to be avoided due to the adverse and potentially hazardous effect they have on the public.

Direct Testimony of Gopi R. Kedia, at 5; R.R. at 35a.

Protestants presented the expert testimony of Edward G. McGavran (McGavran), an electrical engineering consultant. McGavran opined that the project proposed by PPL is " not necessary to remedy the reliability concerns noted by PPL." Direct Testimony of Edward G. McGavran, at 10; R.R. at 163a. He believed that " rather than constructing an entirely new line, it is more prudent to upgrade the existing [Sunbury-Middleburg 69 kV] transmission lines by either installing heavier conductors with more capacity than the existing conductor, or adding a new circuit with more capacity on each line." Id. McGavran believed the system could meet the demands under any condition if PPL used the existing right-of-way and converted the single-circuit lines to double circuit lines with a heavier conductor. Id. He opined that conversion of the existing circuit would cost less than construction of a completely new circuit and minimize environmental impacts. Id. at 11; R.R. at 164a. McGavran also opined that the construction of the New Transmission Tie Line and New Substation are unnecessary because the existing transmission lines in the area are reliable.

PPL offered the testimony of its Supervising Engineer in the Transmission Planning Department, Lisa Krizenoskas

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(Krizenoskas), to rebut the opinions of McGavran. Krizenoskas explained that the project is not intended to directly reduce or eliminate the number of system outages. Rather, the project is intended to reduce the duration of individual outages and improve PPL's ability to restore service in the event of an outage. Rebuttal Testimony of Lisa Krizenoskas, at 2; R.R. at 173a.

Krizenoskas also explained that the reason PPL developed the RP& P Guidelines was " to assure adequate and appropriate levels of service consistent with good utility practices." She stated that the RP& P Guideline which pertains to the amount of load exposed to an interruption " is derived from the emergency rating of standard 69 kV line conductor which is 120 MVA." Id. at 4; R.R. at 175a. PPL's RP& P " loading guideline of 60 MVA for a 69 kV allows for emergency transfers to restore load from an adjacent line, if available." Id. She explained that PPL " has applied this methodology to the development of the power system since the 1980s and this design philosophy has provided for a highly reliable power system that is consistent with good utility practice." Id. at 5; R.R. at 176a. " This methodology has also been presented to the Commission as the basis for PPL's planning decisions in numerous transmission project applications over the last thirty years." Id.

Krizenoskas did not agree with McGavran's opinion that the better alternative was to add a second circuit to the " Sunbury-Middleburg" 69 kV transmission line. Krizenoskas explained that PPL considered this alternative. However, it concluded that adding a second circuit to the Sunbury-Middleburg 69 kV transmission line would not resolve the reliability violations that are addressed by the New Transmission Tie Line and New Substation. Also, the structures which make up the Sunbury-Middleburg 69 kV line are not designed to accept a double circuit and therefore they would have to be replaced. This would entail additional removal costs, and the rebuild of approximately 12.5 miles, which is about 1.5 miles longer than the proposed project. Id. at 15; R.R. at 186a. It would also involve " an increase in the width of the existing right-of-ways" and there are " congested residential areas along the line route where widening of the right-of-ways may be impossible, because of the presence of 14 non-condemnable properties." Id. at 16; R.R. at 187a. She also emphasized that the line switching capability that the New Transmission Tie Line was intended to create would not be met by reconductoring (add electric circuit to) the existing lines.

PPL presented the testimony of Supervising Engineer, Howard Slugocki (Slugocki), who testified about the need for the New Substation. He explained that the Distribution Planning Department identified the " Dalmatia 36-02" circuit as one that does not meet the Distribution RP& P Guidelines " for miles or circuit and for customer count per feeder." Rebuttal Testimony of Howard Slugocki at 2; R.R. at 193a. " Specifically, the Dalmatia 36-02 distribution line serves over 2,200 customers and supplies 194 miles of line. The Distribution RP& P Guidelines provide for no more than 1,300 customers per line and 50 miles of line." Id. " The Distribution Planning Department identified that an additional substation in the region with additional 12 kV distribution lines would help relieve the Dalmatia 36-02 line and reduce customers exposed to an outage." Id.

Slugocki testified that " this line has consistently been one of the worst performing circuits in PPL Electric's system, having been present on the worst performing circuits list 16 of the last 31 quarters." Id. at 3; R.R. at 194a.

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According to Slugocki, Commission regulations require PPL to file annual reports regarding the 5% of circuits on its system that are classified as the worst performing circuits. 52 Pa. Code § 57.195. This determination is based on the number of outages and the duration of those outages. Slugocki at 3; R.R. at 194a. The New Substation and the splitting of a single distribution line into multiple lines will not reduce the number of individual outages, but it will " greatly reduce the number of customers affected by individual outages" by reducing the number of circuit miles per feeder. Id. at 4; R.R. at 195a. Slugocki testified that PPL has ...


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