ATP-Template No. 1

PENNSYLVANIA

PUBLIC UTILITY COMMISSION

Harrisburg, PA 17105-3265

Public Meeting held July 13, 2001

Commissioners Present:

Glen R. Thomas, Chairman

Robert K. Bloom, Vice Chairman

Aaron Wilson, Jr.

Terrance J. Fitzpatrick

David & Mary SweeneyC00003631

PECO Energy Company

OPINION AND ORDER

BY THE COMMISSION:

Before the Commission for consideration are the Exceptions of David and Mary Sweeney (Complainants) filed on April24, 2001, to the Initial Decision of Administrative Law Judge (ALJ) AllisonK. Turner that was issued on April4, 2001. Although timely filed, the Exceptions were not served upon PECO Energy Company (Respondent) and, therefore, the Exceptions were served upon the Respondent by Secretarial Letter dated April25, 2001. The Respondent did not file Reply Exceptions.

History of the Proceeding

On May3, 2000, the Complainants filed a Formal Complaint against the Respondent requesting that the Respondent remove the large transformers that were placed on the twoVerizon of Pennsylvania Inc., f/k/a Bell Atlantic-Pennsylvania (Verizon PA) poles at 315Rock Raymond Road. The Complainants represented that the Respondent refused to remove them. The Complainants further averred that they asked the Respondent, verbally and in writing, to provide all the known safety and health hazards of these transformers in terms that are understandable.

On July26, 2000, the Respondent filed an Answer to the instant Complaint. On October25, 2000, a telephonic hearing was held before ALJ Turner. The Complainants participated prose, at the hearing. The Respondent was represented by counsel.

Discussion

The ALJ made thirty-twoFindings of Fact and reached nineConclusions of Law. The Findings of Fact and Conclusions of Law are incorporated herein by reference and are adopted without comment unless specifically identified and discussed. The ALJ found that, pursuant to Section332(a) of the Public Utility Code (Code), 66Pa. C.S. §332(a), the Complainant, who is seeking relief from the Commission, bears the burden of proof in this proceeding. (I.D., p.11).

The ALJ framed the dispute as follows:

The core of the Sweeneys’ complaint is that PECO has installed unsafe facilities on their property, and that PECO did not obtain permission from them, and thus did not have the authority to install these facilities where it did.

(I.D., p.12).

The ALJ opined that the Commission has jurisdiction to consider the reasonableness and safety of the installation of the disputed transformers, and the Respondent’s conduct toward, and interaction with, the Complainants. (Id.).

The ALJ noted that the Respondent failed to contact the Complainants before the installation of the transformers. The ALJ further noted that the Respondent conceded this omission. The ALJ found that the Respondent’s failure to notify the Complainants prior to the installation of the transformers amounted to a violation of Section1501 of the Code, 66Pa. C.S. §1501, which requires a utility tofurnish and maintain adequate, efficient, safe, and reasonable service and facilities. The ALJ recommended that a civil penalty of $1,000 be imposed upon the Respondent for this violation. (I.D., pp.2223).

The ALJ found that the Respondent properly responded to the Complainants’ concerns after they complained about the installation of the transformers. The ALJ noted that the Respondent’s employees met with the Complainants in November 1999, after the transformers, were installed but before they were connected and otherwise operational. The ALJ found that the Respondent explained to the Complainants why it considered the transformers and their installation safe, although the Complainants were not satisfied with that explanation. The ALJ further found that the Respondent offered to move one of the transformers from the Complainants’ property. The ALJ noted that the Respondent repeated these explanations and the offer of removal in April 2000. (I.D., p.13).

With regard to the issue raised by the Complainants that the Respondent did not have the authority to install the transformers, the ALJ found that, pursuant to an aerial grant (right of way) that the Complainants made to Verizon PA for the amount of $400.00, the Respondent had the right to install the transformers and keep them in place. (I.D., p.12).

The Complainant raised issues regarding the safety of the transformers. Specifically, the Complainant argued that the transformers should be removed due to the following potential hazards: (1)transformer failure; (2)Vehicle Accidents and Acts of Nature; (3)Electromagnetic Fields (EMFS); (4)Reasonableness of Location.

The ALJ found that the Complainants did not meet their burden of proving, pursuant to Section332(a) of the Code, 66Pa. C.S. §332(a), that the Respondent’s facilities were unsafe. The ALJ’s detailed consideration of the safety issue[s] appears at pages1422 of the Initial Decision, and is incorporated herein by reference.

The Complainant’s Exceptions:

The Complainants’ Exceptions consist of fourtype-written pages. Therein, the Complainants allege the ALJ erred in relying on the testimony of the Respondent’s witness, Mr.JohnC. Shaffer (Mr.Shaffer), an Engineering witness. The Complainants contend that Mr.Shaffer did not have the background or experience to testify on certain issues in this case. Specifically, the Complainants point out that Mr.Shaffer did not have the expertise to support his conclusion that, if a pole supporting a transformer were to collapse, it would not result in ground compression sufficient to cause a rupture of a gas main that runs through the Complainants’ property.

The Complainants also except to the ALJ’s adoption of Mr. Shaffer’s testimony that, if a transformer were to fall and mineral oil were to escape from the transformer, the mineral oil would not be hot enough to cause injuries. The Complainants point out that Mr.Shaffer testified that the temperature of the leaked oil would be approximately 90degrees centigrade, which would equate to approximately 194degrees, Fahrenheit. The Complainants maintain that this is a potentially dangerous situation. This, according to the Complainants, indicates that Mr.Shaffer’s testimony should not be regarded as “expert” testimony.

The Complainants also argue that the Initial Decision contains an internal inconsistency. Specifically, the Complainants contend that the ALJ found that the Complainants had shown that the present location of the poles and transformers exposes the facilities to potentially serious hazards, and that the Complainants had met their initial burden of proof. (I.D., p.21). The Complainants further contend that the ALJ erred in finding that the Complainants did not meet their burden of proof by demonstrating that that the facilities are potentially unsafe in light of the finding that the location is potentially hazardous.

Analysis

We note that we are not required to consider expressly or at great length each and every contention raised by a party to our proceedings. (University of Pa.v. Pa. P.U.C., 86Pa. 410, 485A.2d 1217, 1222(1984). Any Exception or argument that has not been specifically addressed herein shall be deemed to have been duly considered and denied without further discussion.

We agree with the ALJ that, pursuant to Section332(a) of the Code, the Complainants bear the burden of proof in this proceeding. We note that the Respondent’s failure to notify the Complainants of the transformer installation, violated the provisions of Section1501 of the Code, 66Pa. C.S. §1501. Accordingly, we will adopt the ALJ’s finding and we shall also adopt the ALJ’s recommendation to impose a civil penalty of $1,000 for this violation of the Code pursuant to Section3301 of the Code, 66Pa. C.S. §3301.

As we consider the Complainants’ Exceptions, we are mindful of the statutory requirements of Section1501 of the Code, 66 Pa. C.S. §1501. Section1501 of the Code does not require a public utility to protect its customers from every conceivable risk. The ALJ proffered the following overview of the situation which prompted the Respondent to locate the transformers on the Complainants’ property:

PECO Energy provided testimony as to the reasonableness for the chosen location. The transformers were installed to provide more reliable service to 100 local customers, including the Complainants in a neighborhood near the poles. It was implied that PECO sought to place the transformers in close proximity to those customers, and the location of the poles and transformers is in close proximity. Tr.92, 100-101. The area is shown in the upper right hand quadrant of PECOB. Tr.88-90, 94-95

There are electrical and physical constraints that make relocation of the transformers difficult. First the twotransformers need to be close to each other because they operate in tandem. Second, the facilities need to be located so that the wires attached to the transformers do not curve. This requires a straight stretch of road. The poles that were used were suitable because there was no equipment on them, they were of sufficient strength, the road was not winding at that point, and the close proximity of the poles satisfied the requirement that the transformers must work in tandem. Tr.73

[Mr.] Shaffer testified that it would be difficult to relocate both transformers but it could possibly be done. If PECO is ordered to remove the transformers to another site, and a reasonable alternative location could not be found, he could put the residents back on the old system. Tr. 152. Clearly, the

latter alternative is not acceptable, because it would return those customers to a diminished level of service.

(I.D., pp. 20-21).

The Complainants’ Exceptions seek to impeach the credibility of the Respondent’s witness, Mr.Shaffer. We find, as did the presiding ALJ, that Mr.Shaffer’s testimony was convincing and credible. (Danovitzv. Portnoy, 161A.2d 146 (1982)). Even though Mr.Shaffer is not trained as a civil engineer, we find that his professional experience qualifies him to give a credible opinion on issues such as whether a gas main would be ruptured if a pole fell to the ground. We find also that the Complainants’ offered no testimony that rose to the level of refuting the Respondent’s testimony or argument regarding the safety issues.

With regard to the location issue, we take cognizance of the fact that the transformers were installed at their current location for the purpose of improving service reliability to approximately 100electric customers, including the Complainants. The ALJ noted from the Respondent’s testimony that if PECO were to be ordered to remove the transformers to another site, and a reasonable alternative location could not be found, the residents could be returned to the old system. This alternative is not acceptable, because it would return those customers to a diminished level of service.

Based on the record as developed, the ALJ found as follows regarding movement of the transformers:

PECO has shown that it has identified a reasonable alternative location [[1]] for one of the transformers, and that it is willing to

move one of the transformers to that location, and I will direct that the single transformer be moved.

(I.D., p. 21).

We find the ALJ’s recommendation relative to the issue to be reasonable, appropriate and in accord with the record evidence. Therefore, we will direct the Respondent to relocate the transformer to the alternative location specified at the hearing of October25, 2000, within thirtydays of the date of entry of this Opinion and Order.

Based upon the foregoing discussion, we will deny the Exceptions of the Complainants, and adopt the Initial Decision of ALJ Turner as modified by this Opinion and Order; THEREFORE,

IT IS ORDERED:

1.That the Exceptions of David and Mary Sweeney are hereby denied.

2.That the Initial Decision of Administrative Law Judge AllisonK. Turner is adopted as modified by this Opinion and Order.

3.That, within twenty(20) days of the date of entry of this Opinion and Order, PECO Energy Company shall pay a civil penalty in the amount of $1000.00 by submitting a certified check or money order to:

Pennsylvania Public Utility Commission

P. O. Box 3265

Harrisburg, PA 17105-3265

4.That, within thirty(30) days of the date of entry of this Opinion and Order, PECO Energy Company shall relocate a single transformer from the property of David and Mary Sweeney, at 315Rock Raymond Road, Downingtown, Pennsylvania to the alternative location specified at the hearing of October25, 2000.

5.That the matter docketed at No.C00003631 be marked closed.

BY THE COMMISSION,

James J. McNulty

Secretary

(SEAL)

ORDER ADOPTED: July 13, 2001

ORDER ENTERED: July 16, 2001

[1]An adjacent property. (See Finding of Fact No.23; Tr.79).