STATEMENTS OF POLICY
Title 52—PUBLIC UTILITIES
PENNSYLVANIA PUBLIC UTILITY COMMISSION
[ 52 PA. CODE CH. 69 ]
[40 Pa.B. 7095]
[Saturday, December 11, 2010][ M-2009-2141293 ]
Interim Guidelines for the Filing of Electric Transmission Line Siting Applications Public Meeting held
November 4, 2010Commissioners Present: James H. Cawley, Chairperson; Tyrone J. Christy, Vice Chairperson; John Coleman; Wayne E. Gardner; Robert F. Powelson
Interim Guidelines for the Filing of Electric
Transmission Line Siting Applications;
M-2009-2141293
Final Order Establishing Interim Guidelines By the Commission:
By order of the Commission entered February 2, 2010, the Commission issued a Tentative Order establishing proposed Interim Guidelines for the Filing of Electric Transmission Lining Siting Applications. Notice of this Tentative Order was published at 40 Pa.B. 953 (February 13, 2010). The Tentative Order established a 45-day period for filing comments. By this order, the Commission establishes Interim Guidelines governing the siting of electric transmission facilities.
Background
The current regulatory filing requirements utilized by this Commission for the siting of high voltage electric utility transmission lines are governed generally by sections 1501 and 2805 of the Public Utility Code and section 1511 of the Business Corporation Law, 66 Pa.C.S. §§ 1501, 2805; 15 Pa.C.S. § 1511. Detailed filing requirements for transmission siting applications appear in Chapter 57 of the Commission's regulations—specifically §§ 57.71—57.76. 52 Pa. Code §§ 57.71—57.76 (relating to Commission procedures for siting and construction of electric transmission lines). However, the Commission's current regulatory requirements for the siting of electric transmission lines are over 30 years old and, although these regulations have been periodically revised (with the last revision occurring in 1999), the Commission believes that these regulations need to be further updated and revised to accurately reflect recent developments in transmission planning occurring at the federal level, and in general, to ensure that appropriate information accompany each transmission siting application.
There have been many significant developments that require this Commission to undertake a revision of its transmission siting regulations. Congress recently enacted section 216 of the Energy Policy Act of 2005 (EPAct of 2005) which greatly expands the role of the federal government in transmission siting including the creation of federal backstop siting authority that requires state commissions to review and rule upon large transmission siting projects within one year. The EPAct of 2005 also authorizes the U. S. Department of Energy (DOE) to study congestion on a national level and to designate National Interest Electric Transmission Corridors to promote transmission development. The EPAct of 2005 also expands the role of the Federal Energy Regulatory Commission (FERC) in permitting and siting of transmission facilities. Increasingly, FERC is encouraging, through pronouncements such as Order 890, regional transmission planning which has spurred greater regional planning initiatives at the RTO/ISO level. Most recently, FERC has issued a Notice of Proposed Rulemaking at RM10-23-000 that will examine how costs for regional transmission projects should be allocated within and between planning regions.
Additionally, a number of new multi-state backbone transmission projects, such as the TrAILCo and Susquehanna-Roseland projects, have been recently approved by the Commission and other transmission projects have been filed in neighboring states that have regional reliability and rate implications for the ratepayers of Pennsylvania.
As stated in the Tentative Order issuing proposed Interim Guidelines at p. 2, the Commission indicated its intent to initiate a general rulemaking proceeding under separate order inviting comments from interested parties to revise the Chapter 57 regulations for the siting of large transmission facilities. This rulemaking proceeding will be complex and time consuming covering a broad array of topics and potentially involving many stakeholders. The Commission anticipates that the entire rulemaking process may take from 12 to 18 months. The Commission wishes, at the outset, to underscore its interest and commitment in developing a regulatory approval process that is timely, efficient and fair to all parties including those private and public parties whose properties are affected by the siting of these transmission facilities.
On February 2, 2010, the Commission issued its Tentative Order proposing Interim Guidelines which requested submission of additional information to supplement the existing filing requirements. These proposed Interim Guidelines were issued and established a 45-day filing period for the filing of comments.
Sixteen parties filed comments. The following parties filed comments on behalf of the electric utility sector: The Energy Association of PA (EAPA), PPL Electric Utilities (PPL), PECO Energy Company (PECO), Duquesne Light Company (Duquesne), FirstEnergy (on behalf of Pennsylvania Electric Company, Metropolitan Edison Company and Pennsylvania Power) (FirstEnergy) and Allegheny Power d/b/a West Penn Power (Allegheny). Governmental parties filing comments included the Commission Office of Trial Staff (OTS), Office of Consumer Advocate (OCA), PA Game Commission (PGC), PA Dept. of Conservation and Natural Resources (DCNR) and the Montgomery County Planning Commission (MCPC). A number of environmental and resource preservation non-governmental organizations filed comments including the PA Chapter of The Nature Conservancy (TNC), the Audubon Society (Audubon) and the Brandywine Conservancy (Brandywine). We have reviewed and addressed these comments below.
Designation of Interim Guidelines
For purposes of discussing the comments received on the proposed Interim Guidelines, the numbering references contained in the Tentative Order are utilized. At the conclusion of each discussion, each Interim Guideline is cross-referenced to the corresponding section reference as contained in Chapter 69 of the Pa. Code where these Interim Guidelines will be published.
The Need for Interim Guidelines
There was a divergence of opinion on the need to establish Interim Guidelines during the pendency of the formal rulemaking. A number of electric utility sector comments including EAPA and Duquesne questioned the need for Interim Guidelines at all terming them unnecessary, duplicative and potentially confusing to electric utilities filing transmission applications. The EAPA is concerned that the Interim Guidelines may discourage investment in transmission infrastructure and requests modifications to the Interim Guidelines or, alternatively, scrapping the concept of Interim Guidelines entirely. EAPA proposes the Commission continue to process transmission proceedings on a case by case basis. Duquesne echoes these concerns stating there is no reason to either subvert the prescribed rulemaking procedure dictated by law or to modify a legally prescribed methodology to amend rules, e.g. the formal rulemaking process. PECO, FirstEnergy and Allegheny have similar concerns but nevertheless suggest constructive modifications to the proposed Interim Guidelines. PECO filed detailed comments seeking to improve language clarity and specificity. FirstEnergy advises that the Commission should only enact those Interim Guidelines that are clearly needed to provide the Commission with information to make an informed decision. PPL supports the concept of Interim Guidelines, stating that most of the information requested is typically gathered during the transmission application process and is either submitted as part of the transmission application or is available through discovery. PPL additionally offers a number of suggested changes which improve these guidelines as ultimately adopted.
A number of other parties filed detailed comments generally supportive of the Interim Guidelines including OTS, OCA, PGC, DCNR, Brandywine, MCPC, Audubon, and TNC. All of these parties support adoption of the proposed Interim Guidelines and make additional suggestions to enhance their effectiveness. The Commission has considered the suggestions offered by the non-utility parties and incorporated them where possible. However, a number of suggestions proposed by non-utility parties would significantly expand the scope of the Interim Guidelines beyond the original intent and would implement changes not fully subject to review and comment by all parties. In those circumstances, the Commission encourages the parties proposing these additional changes to submit these suggestions as part of the Proposed Rulemaking.
The Commission reiterates the need for a limited set of Interim Guidelines as being necessary and proper to the efficient functioning of the agency in the processing of transmission siting cases. The Commission has routinely utilized Interim Guidelines in other proceedings. See Interim Guidelines for Abbreviated Dispute Resolution Process, Dkt. No. M-00021685 (Order entered August 31, 2005); Interim Customer Information Disclosure Requirements for Natural Gas Distribution Companies and Natural Gas Suppliers, Dkt. No. M-00991249F0005 (Order entered August 27, 1999); Final Interim Guidelines Regarding Notification by an Electric Generation Supplier of Operational Changes Affecting Customer Service and Contracts, Dkt. No. M-00960890F0013 (Order entered August 14, 1998). Most recently the Commission has issued Interim Guidelines on Marketing and Sales Practices for Electric Generation Suppliers, Dkt. No. M-2010-2185981 (Order entered July 15, 2010). In adopting the following Interim Guidelines, the Commission has carefully considered the comments of the electric utilities and non-utility parties and has modified the Interim Guidelines in a manner which does not impose additional burdens on an already document-intensive process. In many instances, the Interim Guidelines have been modified to reflect valid utility concerns. Also as noted by a number of electric utilities, where a perceived conflict exists between a particular Interim Guideline and an existing regulation, the existing Chapter 57 regulation will govern.
The Commission has the authority to establish Interim Guidelines pursuant to 52 Pa. Code § 57.72(c)(15) to request additional information that it may require as part of a transmission application filing process. Additionally, while these Interim Guidelines are not mandatory, a failure to provide this information with the initial application may result in that information being requested through the discovery process. More importantly, it is essential and in the public interest for the Commission to obtain information necessary to make a fair and informed judgment regarding the merits of proposed transmission projects in Pennsylvania.
In the Commission's judgment, there are a number of reasons why Interim Guidelines are necessary and appropriate. First, as a number of parties noted, the current transmission siting regulations have been in existence for over 30 years and were designed in an era when transmission lines were largely intrastate in character and regional reliability issues were not a concern. The Commission believes that certain modifications to the filing requirements may be implemented which do not place excessive burdens on transmission applicants pending the issuance of final regulations. Second, the Commission has decided two major transmission siting proceedings in the past three years and more such proceedings are expected in the future. In recent transmission proceedings, issues arose relating to public outreach and education, landowner relations, coordination of federal and state permitting and eminent domain practices. Those issues are anticipated to arise in future transmission siting proceedings. OCA comments that they have observed first-hand ''the confusion and difficulties experienced by members of the public affected by transmission line siting.'' (OCA Comments, p.2). The Interim Guidelines are designed to address those circumstances. Finally, the Commission has limited resources for managing complex transmission siting cases while operating under the federal requirement that major transmission siting cases be processed within one year. The Interim Guidelines are designed to provide the necessary additional information to enable the Commission to process transmission siting applications on a timely basis and meet the one year requirement. The Scope of the Interim Guidelines is contained in Annex A at § 69.3101.
Public Notice Filing Requirements
Section 2(i)
The purpose for implementing Interim Guidelines addressing public notice was two-fold: (1) to provide for an increased level of knowledge on the part of the public generally about the siting of electric transmission lines and (2) to ensure uniform, fair treatment of impacted landowners located along transmission line rights of way (ROW). Recent transmission line siting proceedings have demonstrated to this Commission that improvements in the filing requirements and notification procedures are necessary.
Section 2(i) of the proposed Interim Guidelines provides that applications for electric transmission siting authority include a Code of Conduct or Internal Practices governing the manner in which public utility employees and/or their agents interact with affected property owners. Standardized utility practices governing interactions with landowners ensure fair, open and equitable treatment of landowners during the transmission siting process and can enhance future communications between landowners and the public utility.
Electric utility comments varied on the need for this requirement. Duquesne Light questioned the need for such a requirement indicating that the existing notice requirements are sufficient. PECO suggests that Codes of Conduct be company-specific reflecting the particular procedures of the utility. FirstEnergy considers the requirement to be vague and suggests that the Commission provide specific guidelines. PPL questions the need to provide the Code of Conduct with the notices of applications and/or letters of notification that go to individual landowners. PPL is also concerned about the scope of this requirement. In PPL's view, the requirement could be considered to apply to all landowners with a view of the transmission line and could require the public utility to craft a set of rules applicable to many different situations in which the utility interacts with the public relative to the transmission line project. Finally, no non-utility party opposed the guideline and OTS and OCA endorsed the guideline. OCA noted that the adequacy of notice to landowners and the behavior of utility representatives and land agents were raised at various junctures of specific transmission line proceedings thus justifying implementation of additional requirements.
Resolution
The Commission does not consider it either unreasonable or overly burdensome to require a public utility to make available a Code of Conduct/Internal Practices as part of the initial application which will enable all parties to better understand and assess the quality of public utility/landowner interaction during the siting process. Moreover, the Commission believes that this document should be made available to all affected landowners. Landowners situated along a proposed transmission corridor should be apprised of what practices the utility will employ as part of its ownership of or easement rights to the property. Reflecting PPL's concern over the scope of this requirement, we adopt PPL's clarification that the service of the Code of Conduct only be made to landowners physically located along the transmission corridor whose property may be subject to purchase or easement or simply border the transmission route. This requirement would not apply to all landowners who may have a ''view'' of the corridor. The document should also be available on the utility's website. Additionally, the parties to the proceeding and the Commission should have a means of gauging what standards and procedures the utility utilizes in either direct interactions with landowners or interactions between third party contractors and landowners. Additionally, such information will aid the Administrative Law Judge (ALJ) and Commission in addressing landowner complaints that arise during the public input process.
With regard to specific comments, the Commission encourages jurisdictional electric utilities to develop (if not already available) or update existing Codes of Conduct/Internal Practices governing their relationships with affected landowners. These documents should encompass a description of utility practices with regard to properties potentially subject to condemnation or purchase as well as utility practices in dealing with landowners adjacent to the route of the transmission line. The Commission is reluctant, as FirstEnergy suggests, to prescribe the contents of such documents because, as noted by PECO, such information should be company-specific reflecting the unique practices of each public utility. This Interim Guideline is adopted at Annex A at § 69.3102(a)(1).
Sections 2(ii) and (iii)
Section 2(ii) of the Interim Guidelines requests the application filing include copies of information to impacted landowners by the public utility, including bill inserts, newspaper and website notices and radio and TV notices advising landowners to contact the Commission or OCA in the event of improper land agent or utility employee practices. The Interim Guidelines also request submission of notices sent pursuant to 52 Pa. Code § 57.91 which are the notices provided in the event of the electric utility seeking to exercise eminent domain authority. An additional provision of the Interim Guidelines requests provision of notice to the Commission Office of Communications regarding informational presentations to community groups by the public utility so that Commission representatives, OCA and other governmental entities can attend meetings or obtain copies of information being disseminated at the presentations. These additional filing requests were prompted by concerns raised in recent transmission siting proceedings about the adequacy of notice to impacted landowners on the land use impacts and eminent domain issues associated with the proposed facilities.
Electric utility comments largely questioned the need for these additional requirements pending completion of the proposed rulemaking. Duquesne does not believe any additional regulation of public notice requirements is warranted. The EAPA and PPL raised concerns about the scope of the term ''affected landowners.'' These parties were concerned that this term could be construed to apply to any communication between the utility and landowners, a requirement that could be burdensome and impractical. PPL suggests that only information prepared for general notice to landowners be provided. PPL also is concerned that notices of public meetings occurring prior to the filing of the application would reflect a fundamental change in Commission procedures that are not appropriate for inclusion in Interim Guidelines. FirstEnergy raised concerns over the cost of providing additional notices. PECO claims that its standard practices in handling landowner notification issues renders additional notification requirements unnecessary. PECO indicates that it already provides detailed information in its applications about public outreach. Some electric utility comments indicated that these requirements would be feasible subject to language modifications and reasonable limitations on scope of notice. OCA commented that provision of public information such as bill inserts and newspaper notices to the Commission, during the course of the proceeding, would benefit the process through greater transparency, allow for monitoring of public statements by the statutory parties and lead to enhanced public confidence. No commenter objected to section 2(iii) of the Interim Guidelines requesting production of copies of all notices sent pursuant to 52 Pa. Code § 57.91.
Resolution
In establishing these Interim Guidelines, the Commission must balance concerns over proper notice to impacted landowners along the transmission route with minimizing additional costs and burdens to the public utility. The Commission agrees with EAPA and PPL that the term ''affected landowner'' be limited to communications by electric utilities to owners of land that will be purchased for the transmission project or be subject to ROW or easement requirements. The requirement contained in section 2(ii) of the Interim Guidelines is only requesting the filing, with the application, of any publicly disseminated notices to landowners located along the route of the transmission line of the need to contact either the Commission or OCA in the event of any improper land agent practices. Interim Guidelines 2(ii) and (iii) as adopted are contained in Annex A at § 69.3102(a)(2) and (3).
Service of Copies of the Code of Conduct
The Commission strongly encourages utility applicants to take special efforts to inform landowners of the practices employed by the utility in its relationship with the landowner both during the negotiation process and after the property has been purchased or the easement rights obtained. Landowners whose properties merely border the transmission corridor should also have knowledge of the utility's standard practices. For this reason, we are requiring in § 69.3102(b) of the Interim Guidelines that each utility applicant make available and provide a written copy of its Code of Conduct/Internal Practices on each landowner along the proposed route. To be clear, the class of landowners potentially eligible for receipt of this document would be landowners whose properties are either subject to purchase or easement as well as properties that border the proposed transmission route. The utility should also make the Code of Conduct available on the utility website. This Interim Guideline is adopted at Annex A at § 69.3102(b).
Informational Presentations
The Interim Guidelines request that transmission siting applicants provide prior notice to the Commission's Office of Communications of informational presentations to community groups by the public utility regarding the proposed transmission line so that the Commission or other governmental parties can attend or at least obtain information regarding the type of information that is being distributed to the public by the electric utility. Virtually all the electric utility comments raised practical objections to the proposal which can be categorized as follows: (i) public utility informational outreach is very company-specific to the service area; (ii) informational public outreach and education about a proposed transmission project begins long before the formal application is made; (iii) this requirement may be burdensome as any type of communication between the utility and an individual landowner could come within the guideline; and (iv) the presence of Commission or other governmental personnel may have a ''chilling effect'' on the informational exchange and may render the meeting a public input hearing. On the other hand, the OCA supported provision of such information as a means of increasing transparency and public confidence in the administrative process.
Resolution
The Commission agrees with PECO that a prudent public utility transmission applicant begins the public outreach and educational process before the formal application is filed with the agency. Also, the type and quality of the communication process will vary by public utility service area. Additionally, public presentations on a subject as controversial as a transmission line have the potential to become contentious. Allowing potential parties to the case to attend before the formal filing of the application would be inconsistent with the Commission's Rules of Practice and Procedure. PPL notes that pre-filing attendance of Commission or other governmental parties would reflect a fundamental change in the Commission's review and involvement in transmission siting cases. The Commission already provides for ample public input sessions after the case is filed and does not wish to duplicate that process.
However, the Commission does have a concern regarding the amount and quality of information provided by the utility applicants to the public generally about a proposed transmission project. As such, the provision of advance notice of informational sessions to the public, either to the general community or interest groups, after the filing of the formal application, is not inconsistent with the Commission's duties generally in reviewing and approving transmission siting applications and insuring that the entire public outreach/education process is transparent.
In recognition of the concerns raised by electric utility comments, the Commission narrows the scope of this particular Interim Guideline to require the provision of notice to the Commission's Office of Communications of publicly advertised meetings with large community or other interest groups by the public utility following the filing of the formal application for siting and construction of the transmission line. The Commission is not going to define the particular size of the group to which this Interim Guideline applies but will leave that to the discretion and judgment of each utility. Additionally, the public utility should also be prepared to produce, if requested, copies of information disseminated at these informational presentations. This Interim Guideline is adopted in Annex A at § 69.3102(c).
Eminent Domain Filing Requirements
A public utility's eminent domain power derives from section 1511(c) of the Business Corporation Law 15 Pa.C.S. § 1511(c). The Commission currently has authority for eminent domain powers under 66 Pa.C.S. § 1104 and 52 Pa. Code § 57.91. The proposed Interim Guidelines are designed to assist the Commission in evaluating applications for eminent domain authority pending a general review of the scope of the Commission's condemnation powers during the upcoming rulemaking process.
Section 3(i)
Section 3(i) requests the filing of applications for eminent domain authority separate from but simultaneously with the associated transmission siting application. The Interim Guideline also recommends the filing of written testimony in support of the eminent domain application.
Electric utility comments suggested that certain modifications be made to the guideline. A number of public utility comments (EAPA, PPL, PECO, Duquesne, FirstEnergy) raised concerns that the simultaneous filing requirement may disrupt ongoing negotiations with landowners and unnecessarily complicate land acquisition. Duquesne notes that 52 Pa. Code § 57.75(i) permits but does not require the filing of eminent domain applications at the same time as the siting application. Allegheny notes that landowners often do not begin to seriously negotiate until after the siting application is filed. Negotiations or even preliminary evaluations may be ongoing with the need to actually file for eminent domain authority arising after the filing of the transmission siting application. Eminent domain proceedings may not even come into play until the end of the transmission siting process after the line has been approved. PECO notes that synchronization of the filings of transmission siting applications and eminent domain applications may not always be feasible or necessary. Synchronized filings may also change the tenor of negotiations that were largely harmonious and now may become contentious. PPL suggests that the simultaneous filing requirement be clarified to require that the public utility file for all known eminent domain authority when it files its transmission siting applications. Non-utility parties were uniformly in favor of this Interim Guideline. The OCA requests that the Interim Guidelines be modified to require filing of separate petitions for each property with precise locations and a prominent notice to landowners to file responses which would improve the process and provide potentially affected landowners enhanced information compared to what has been required in the past.
Resolution
The Commission recognizes the concerns raised by electric utilities about both the timing constraints associated with simultaneous filings as well as the preference of avoiding condemnation proceedings entirely in favor of negotiated settlements. Condemnation proceedings are costly and time-consuming legal proceedings that should be considered as a last resort after all efforts at negotiation fail. The Commission is not seeking to prematurely accelerate the condemnation process by the utility nor is it precluding utilities from filing for condemnation authority in advance of filing for transmission siting authority. Utilities should maintain the maximum flexibility in their real estate acquisition practices. At the same time, the Commission is concerned, for case scheduling purposes, that it be able to process the eminent domain applications in a parallel timeline with the transmission siting proceeding. The Commission already establishes fairly detailed filing requirements for eminent domain applications at 52 Pa. Code § 57.75(i) and the proposed Interim Guidelines are designed to supplement those requirements.
The Commission will modify section 3(i) of the Interim Guidelines to request the filing of all known eminent domain applications to the extent the filing utility needs such condemnation authority at the time of filing of the siting application. We will request that utilities file any additional required eminent domain applications, as soon as reasonably known and practicable during the course of the siting proceeding. Additionally, all eminent domain applications should be supported by written testimony. The Commission believes that supporting testimony to the eminent domain application should address the reasons for the filing and the precise location of the property.
PPL additionally suggests that the Commission establish a date, perhaps 45 days, by which individual property owners must file a protest or petition to intervene in a public utility's application for eminent domain authority. OCA makes a similar suggestion for filing of separate petitions for each property with more prominent notices of the right of landowners to respond. The Commission can require publication of eminent domain approval applications with a 60 day protest period under section 5.53 of the Rules of Practice and Procedure. The Commission would be interested, as part of the upcoming rulemaking, in learning whether additional changes should be made to the existing provision to provide for more specific notice and response requirements. This Interim Guideline is adopted in Annex A at § 69.3103(1).
Section 3(ii)
Section 3(ii) requires provision of notice of eminent domain proceedings to affected landowners prominent enough to put the landowner on notice to file a response or objection. PECO notes that there is an existing detailed notice in the regulations at 52 Pa. Code § 57.91 that must be served on affected landowners by registered or certified mail when an application for eminent domain is filed. PPL suggests that the Commission require provision of a Notice to Plead and to specify a defined number of days for answers and/or interventions. OCA notes that making a notice of initiation of eminent domain proceedings to affected landowners can be problematic referencing the TrAILCo proceeding where the ALJs noted that a single page notice was buried under ''six pounds of paper.'' Application of TrAILCo, Dkt. No. A-110172 (R.D. at 205-206).
Resolution
This Interim Guideline was developed in response to issues in recent transmission siting cases about the adequacy of notice provided to landowners whose property was subject to condemnation proceedings. The Commission notes that the existing regulation at 52 Pa. Code § 57.91 currently provides for service by registered or certified mail of a detailed notice to property owners. However, § 57.91 does not require the notice to include a list of pleadings which can be filed in response to such an application. While the format prescribed in the regulation may be sufficient, the nature and timing of the notice in conjunction with other materials received by the landowners may need to be modified. Modification of this regulation may be appropriate including adding a Notice to Plead and a defined period to file a responsive pleading. However, the extent of these proposed changes may be inappropriate for an Interim Guideline. The Commission will delete this Interim Guideline but will revisit the current 52 Pa. Code § 57.91 as part of the proposed rulemaking. Copies of notices provided under this regulation should continue to be filed with the siting application pursuant to that provision. Utilities should continue to comply with 52 Pa. Code § 57.91 but make best efforts to insure proper notice to affected landowners of the pendency of the eminent domain action.
Section 3(iii)
Section 3(iii) requires the public utility applicant present with specificity the reason for exercise of condemnation power for each location, the precise location of the affected property, details of the status of negotiations with landowners and supporting maps or legal descriptions of the property to be condemned. The Commission believes this additional information is necessary to enable the evaluation of the propriety of exercise of condemnation power.
A number of public utilities, while raising concerns about the requirement, suggested several modifications to this Interim Guideline. EAPA and Allegheny are concerned about the requirement of providing ''metes and bounds'' legal descriptions as opposed to the more practical language in the Interim Guidelines requesting ''supporting maps or legal descriptions of the easement/right-of-way . . . to the extent feasible.'' Both comments also express concern that the requirement is inconsistent with existing siting requirements at 52 Pa. Code § 57.72(c)(3) and § 57.76(b). Section 57.72(c)(3) requires the filing of a general description of the property included within the transmission corridor. Section 57.76(b) states a grant of transmission siting authority is deemed to encompass an area of 500 feet along either side of the centerline of the transmission corridor. Allegheny notes that a specific property description may not be available at the time the transmission siting application is filed. Finally, PECO highlights a potential inconsistency between the requirement in section 3(iii) to file information regarding the precise location of the impacted property and the requirement under the Eminent Domain Code at 26 Pa.C.S. § 302(b)(5) which requires a public utility to file with the Court of Common Pleas specific narrative descriptions or plans of the property condemned. In support of the Interim Guideline, OCA comments that section 3(iii) would provide a much-needed greater specificity concerning eminent domain applications and would greatly benefit those members of the public whose property lies within the property to be acquired.
Resolution
The Commission's intent in proposing this guideline was to address issues that arose in recent transmission siting proceedings regarding the type and adequacy of notice to impacted landowners who own property that will be subject to condemnation proceedings. Although the Commission appreciates the concerns raised in comments of the electric utilities about potential conflicts with existing regulations, we must balance that concern with the need to provide fairness and transparency to affected landowners who may not be familiar with the potential interference with utilization of their property and the legal implications on their property from the siting of transmission facilities. Moreover, proposed section 3(iii) of the Interim Guidelines is not intended to conflict with but to supplement the information required in the existing regulations at 52 Pa. Code § 57.75(i). Further, in response to a concern raised by EAPA, the language of the Interim Guideline takes precedence over the language of the Tentative Order recognizing that ''defined widths'' and ''specific metes and bounds'' are not necessarily available at the time the siting application is filed.
In addition, the additional detail requested as part of the application in section 3(iii), including the reason for the condemnation and the precise location of the property, is only requested for that property that is known to be subject to condemnation at the time the siting application is filed. This additional information can be easily addressed in the eminent domain application by direct testimony with supporting exhibits. Moreover, the number of properties that need to be described for condemnation purposes will be a subset of the properties identified for the entire transmission corridor so the additional burdens associated with this requirement should not be significant. If additional properties are identified as potential candidates for condemnation later in the transmission siting process, the public utility applicant should include the same information as part of a later filed eminent domain application. The language of the Interim Guideline will also be modified to incorporate PECO's concern that the Guideline not conflict with 26 Pa.C.S. § 302(b)(5).1
Finally, no concerns were raised regarding the requirement that there be, as part of the section 3(iii) submission, a brief description of the reason for the condemnation which can be addressed in testimony. However, there was a concern raised by some electric utilities regarding provision of information with the application on the status of negotiations with landowners. This informational request is not designed to inquire into the confidential details of ongoing negotiations but merely to provide, for the good of the record and for case management purposes, a summary status of those properties where negotiations may be ongoing so that the presiding officer and the parties can gauge the potential likelihood of additional condemnation actions during the course of the siting proceeding. The language of this guideline has been revised to address these concerns. For purposes of clarity, these Interim Guidelines will be adopted and designated as § 69.3103(2) and (3) in Annex A.
Section 3(iv)
Section 3(iv) requests a public utility applicant file a Code of Conduct or Internal Operating Procedures applicable to employees or agents responsible for interacting with impacted landowners. This Interim Guideline is largely identical to proposed Interim Guideline Section 2(i) under the Public Notice Interim Guideline. Comments filed in response to that proposed Interim Guideline were addressed previously. The Code of Conduct to be filed in response to Interim Guideline § 69.3102(a)(1) is designed to be broad enough to encompass communications with landowners affected by condemnation proceedings. To minimize the need for duplicative filings, this Interim Guideline will be deleted.
Exemption from Municipal Zoning Standards
The Commission has proposed a number of Interim Guidelines which expand the quantity of information which should be submitted in support of applications for exemption from municipal zoning requirements. A number of electric utilities, while questioning the need for these guidelines generally, have offered suggested modifications to these Interim Guidelines. Other comments from governmental and other parties were generally supportive of these guidelines.
Section 4(i)
Section 4(i) requests production of land use plans, zoning ordinances and other documentation relevant to the ''facilities'' impacted by the exemption request. This Interim Guideline was proposed to require production of additional information that the ALJ and the Commission may find useful in evaluating requests for exemption from zoning requirements.
A number of electric utility parties (EAPA, PPL, Allegheny, PECO) note that the use of the term ''facilities'' in the Interim Guideline may be too broad. Section 619 of the Municipal Planning Code (MPC), 53 Pa. Code § 10619, specifically limits the scope of Commission jurisdiction for the grant of exemptions from local zoning requirements to ''buildings.'' The Pennsylvania appellate courts have long held that the Commission has exclusive jurisdiction over the siting and construction of transmission lines and municipalities have no residual local jurisdiction over such utility construction activities. See Duquesne Light Company v. Upper St. Clair Township, 103 A. 2d 287 (Pa. Supreme 1954). PPL and other electric utilities recommend that the word ''facilities'' be replaced with the word ''building'' to more properly conform to section 619 of the MPC and appellate case-law.
Resolution
The proposed modification by several electric utilities is appropriate and will be adopted. The term ''facility'' in section 4(i) will be changed to ''building.'' The term ''facility'' in section 4(iii) will also be replaced by the term ''building'' consistent with the comments received.
Section 4(i) also requests production of land use plans, zoning ordinances and other documentation relevant to the ''facilities'' impacted by the exemption request. As noted previously, the term ''facilities'' will be changed to ''building.'' This change narrows considerably the scope of the filings associated with section 4(i). The Commission believes that the requested information may be necessary and useful to the parties and the ALJ in evaluating the request for zoning exemption and should be available. However, PPL notes that local ordinances and land use plans as they relate to ''buildings'' may be voluminous and burdensome to provide in hard-copy form. PPL suggests that such information be made available electronically. The Commission agrees with this suggestion and will modify Interim Guideline 4(i) to allow the option to supply this information in either hard-copy or electronic format. This Interim Guideline is adopted in Annex A at § 69.3104(1).
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1 The relevant language of section 302(b)(5) of the Eminent Domain Code states that the eminent domain filing to the Common Pleas Court must contain: ''A description of the property condemned, sufficient for identification, specifying the municipal corporation and the county or counties where the property is located, or reference to the place of recording in the office of the recorder of deeds of plans showing the property condemned or a statement that plans showing the property condemned are on the same day being lodged for record or filed in the office or recorder of deeds.''
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