West Penn Power Co. v. PA PUC ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
West Penn Power Company, :
Petitioner :
:
v. :
:
Pennsylvania Public Utility :
Commission , : No. 1548 C.D. 2018
Respondent : Argued: September 9, 2019
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ROBERT SIMPSON, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: October 2, 2019
West Penn Power Company (West Penn)1 petitions this Court for review
of the Pennsylvania Public Utility Commission’s (Commission) orders entered on
July 14, 2017 (July 2017 Order)2 and October 25, 2018 (October 2018 Order).3 There
are five issues before the Court: (1) whether the Commission’s jurisdiction over
1
West Penn [] is a Pennsylvania [u]tility that provides distribution
service to customers in 23 counties. West Penn is owned by
First[]Energy Corporation [(FirstEnergy)]. And FirstEnergy [] also
has [a] separate subsidiary named First[]Energy Service Company
[(FirstEnergy Service)]. FirstEnergy Service provides all the services,
engineering, construction, accounting, legal, et cetera, to the operating
companies.
Reproduced Record (R.R.) at 99a.
2
The July 2017 Order was issued as a Tentative Opinion and Order which became final on
August 14, 2017. See R.R. at 681a.
3
Although West Penn petitions for review of the July 2017 Order, since that Order was
rescinded by the October 2018 Order, only the October 2018 Order is before this Court for review.
herbicide use in a public utility’s right-of-way (ROW) is preempted by the statutes
commonly referred to as The Clean Streams Law (CSL),4 and the Pennsylvania
Pesticide Control Act of 1973 (Pesticide Control Act);5 (2) whether substantial
evidence supports the Commission’s October 2018 Order finding that West Penn’s
herbicide use would violate Section 1501 of the Public Utility Code (Code); 6 (3)
whether the Commission abused its discretion by: (a) finding no Code violation in its
July 2017 Order but finding said violation in its October 2018 Order based on the
same evidentiary record, and by granting different relief; (b) finding said violation
where such finding conflicted with prior precedent; and (c) failing to engage in
reasoned decision-making; (4) whether the Commission unreasonably interfered with
West Penn’s duty to provide reasonably reliable service to its customers; and (5)
whether the Commission complied with Section 703(e) of the Code7 when it issued
its July 2017 Order and the October 2018 Order.8
On March 15, 2016, FirstEnergy Service Company (FirstEnergy
Service) notified Robert M. Mattu (Complainant) on West Penn’s behalf relative to a
West Penn transmission line on his property, that FirstEnergy Service had “prescribed
4
Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §§ 691.1-691.1001.
5
Act of March 1, 1974, P.L. 90, as amended, 3 P.S. §§ 111.21-112.
6
66 Pa.C.S. § 1501. Section 1501 of the Code states, in pertinent part:
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. Such service and facilities shall be in conformity with the
regulations and orders of the [C]ommission.
Id. (emphasis added).
7
66 Pa.C.S. § 703(e).
8
This Court has reordered the issues for clarity.
2
that the stumps of the woody vegetation that was cut in 2015 be treated using an
[Environmental Protection Agency (]EPA[)-]registered herbicide” (March 15, 2016
Letter).9 Reproduced Record (R.R.) at 475a. On April 26, 2016, Complainant filed a
formal complaint (Complaint) with the Commission pursuant to Section 1501 of the
Code regarding West Penn’s vegetation management at West Penn’s ROW on
Complainant’s property. Therein, Complainant asserted:
I have a power line running thr[ough] my property. On my
property[,] I have [two] wells that [are my] water supply
and a pond with fish and wildlife. Neighboring [my]
property is [my] son’s house who [sic] also has a well for
water supply. First[]Energy [Service] hired a tree service to
brush out the power line. Now [it] want[s] to spray
herbicide chemicals to hold the brush down. This power
line was put in place in 1968 and I have lived here since
1978. Never once has the power line been sprayed and [I]
DO NOT want it sprayed.
R.R. at 8a-9a.
Complainant requested that the Commission “order [FirstEnergy
Service] not to spray the power line as long as the wells are [his] only source of
water.” Id. at 10a. Despite Complainant’s reference to “spray[ing of] herbicide
chemicals[,]” id. at 9a, West Penn intended to manage the vegetation using the “cut
stump application,” whereby herbicides are applied directly to the cut tree stumps’
cambium layer (Cut Stump Application), rather than being sprayed. Id. at 596a.
An Administrative Law Judge (ALJ) held hearings on August 31 and
October 25, 2016. Complainant testified at the August 31, 2016 hearing regarding his
concerns about the possible contamination of his water supply. West Penn presented
9
The March 15, 2016 Letter further explained: “To cut or mow the brush without the use of
herbicide is an unacceptable solution. Cutting brush increases stem densities and allows for rapid
growth that hinders safety, accessibility and reliability.” R.R. at 475a. It also stated: “West Penn . .
. feels it is necessary to exercise [its] rights and will control all the stumps of the woody vegetation
that was previously cut in 2015 on [its ROW] through the use of EPA[-]registered herbicides.” Id.
3
the testimony of FirstEnergy Service Manager of Program Management and
Oversight Shawn Standish, FirstEnergy Service Transmission Forestry Specialist
Nicholas Weston, and EnviroSolutions Group President and Managing Partner
Salvatore Quattrocchi. The ALJ found all of the witnesses’ testimony credible.
On March 29, 2017, the ALJ issued her initial decision (Initial Decision)
recommending that the Complaint be dismissed because Complainant failed to meet
his burden of proving that the Cut Stump Application method was unsafe and
unreasonable in violation of Section 1501 of the Code. Complainant did not file
exceptions to the Initial Decision.
Pursuant to Section 332(h) of the Code,10 the Commission exercised its
authority to review the Initial Decision. On June 14, 2017, in a joint motion (Joint
Motion), Commission Chairman Gladys M. Brown and Commissioner David W.
Sweet moved for the Commission to reverse the Initial Decision in part. Consistent
with the Joint Motion, the Commission entered the July 2017 Order reversing the
Initial Decision. Therein, the Commission found that “the analysis of the ALJ was
thorough and . . . her decision approving West Penn[’s] proposed actions was
consistent with both Commission precedent and West Penn[’s vegetation
management plan (]VMP[)].” R.R. at 624a. Notwithstanding, observing that
Commission-approved VMP compliance claims are regularly used as a defense to
10
66 Pa.C.S. § 332(h). Section 332(h) of the Code provides, in relevant part:
If no exceptions are filed, the decision shall become final, without
further [C]ommission action, unless two or more commissioners
within 15 days after the decision request that the [C]ommission
review the decision and make such other order, within 90 days of such
request, as it shall determine. The Office of Trial Staff and the chief
counsel shall be deemed to have automatic standing as a party to such
proceeding and may file exceptions to any decision of the
administrative law judge under this subsection.
Id.
4
claims of Code, or Commission regulation or order violations, the Commission found
the VMP “vague and lacking in sufficient detail to provide the owners . . . any
guidance in determining the circumstances under which the landowners may
anticipate the manner in which the [ROWs] will be cleared.” R.R. at 625a.
The Commission further opined:
[T]here is a point where the use of herbicides is simply not
consistent with the landowner’s ability to fully utilize the
property, especially where, as is the case here, the source of
water is shallow wells close to the [ROW]. Under
appropriate circumstances, a landowner should be able
to seek an exception to the utility’s proposed use of
herbicides, and if the utility still refuses, the landowner
should be able to seek relief from the Commission. At
that point, the landowner should file a petition for relief
rather than a complaint. The reason that this Commission
has not previously sustained complaints against utilities
is that no violations of a statute, regulation or order of
the Commission were found. Rather, the landowners were
seeking an exception to the utility’s proposed method of
clearing the [ROW]. In fact, that is the nature of the request
before us today.
R.R. at 626a (emphasis added). Because “simply finding West Penn[’s] planned
method of clearing vegetation from [the ROW] to be consistent with its VMP [was]
not sufficient to provide an equitable result in the instant case[,]” but no statutory or
regulatory violations permitted the Commission to sustain the Complaint, the
Commission instead, sua sponte, converted the Complaint to a petition for relief.11
R.R. at 624a.
11
This Court has held:
[I]n order for the [Commission] to sustain a complaint brought under
[Section 1501 of the Code], the utility must be in violation of its duty
under th[at] section. Without such a violation by the utility, the
[Commission] does not have the authority, when acting on a
customer’s complaint, to require any action by the utility.
5
The Commission reasoned:
[T]he [p]arties have fully litigated a case filed as a
complaint, although the prayer for relief, i.e., a Commission
directive to West Penn [] to not use herbicides on the
[ROW], is a request that is more suited to a petition for
relief than to a complaint. The burden of proving
entitlement to the requested relief lies with the proponent of
the case in both complaints and petitions for relief,
meaning that there would be no change in the burden of
proof if the case had been brought as a petition for relief
instead of a complaint. 66 Pa.C.S. § 332(a).[12] Both
parties had an opportunity to present their own cases,
having been given notice and an opportunity to be heard.
As the requirements of due process have been met, there is
no prejudice to either side by treating this [C]omplaint as a
petition for relief under [Section 5.41 of the Commission’s
Regulations,] 52 Pa. Code § 5.41.
R.R. at 627a (emphasis added).
The Commission concluded:
We believe that the use of herbicides, which are by their
very nature hazardous, can be properly used in some
W. Penn Power Co. v. Pa. Pub. Util. Comm’n, 478 A.2d 947, 949 (Pa. Cmwlth. 1984); see also 66
Pa.C.S. § 701 (relating to complaints). There is no such restriction on the Commission’s authority
when considering a petition for relief.
12
Commissioners John F. Coleman, Jr. (Coleman) and Robert F. Powelson issued a Joint
Dissenting Statement to the Joint Motion, therein arguing:
The Joint Motion notes that other complainants have had great
difficulty in meeting their burden of proof in prior cases involving
herbicide use in ROWs. The Joint Motion acknowledges that these
complaints have failed because [the movants] have not been able to
demonstrate any violation of the [Code], a regulation or order of the
Commission. The Joint Motion insists that this conversion has no
impact on the due process rights of the parties, and that the
[Complainant] still has the burden of proof. While the burden of
proof may not have shifted, the Joint Motion changes the
standard of review it is applying to this case. Under the new
standard, and unlike prior complaints, no violation of Section
1501 [of the Code] must be proven.
R.R. at 617a (emphasis added).
6
circumstances. However, in the present case, the
Complainant has established that his circumstances require
more care in choosing and applying vegetation management
methods than many other landowners’ circumstances. We
note that our decision to grant this [p]etition for [r]elief is
fact-specific and not intended to create a bright line test by
which future cases should be evaluated. Rather, we find
that the totality of the circumstances here, in this specific
case, is sufficient to grant the Complainant relief by
directing West Penn [] to maintain its [ROW] where it
crosses the Complainant’s land by means which do not
include the use of herbicides. Given this unique fact
pattern, the use of herbicides would be unreasonable. Our
decision in this case does not bar West Penn [] from
utilizing other vegetation management methods including
grinding tree stumps or assessing the vegetation growth
within this [ROW] on a shorter time frame. We note that
this is consistent with the methods used to maintain this
portion of the [ROW] in past vegetation management
cycles.
R.R. at 629a. Accordingly, the Commission ordered West Penn to forgo using
herbicides in the ROW on Complainant’s property absent Complainant’s permission.
On August 29, 2017, West Penn petitioned the Commission for
reconsideration of its July 2017 Order, challenging, inter alia, the Commission’s
jurisdiction to provide relief absent violation of the Code, Commission regulation, or
Commission order, the conversion of the Complaint into a petition for relief, and the
Commission’s jurisdiction over a public utility’s herbicide use.
On October 25, 2018, the Commission issued its October 2018 Order
granting West Penn’s reconsideration petition “solely to the extent that the July 2017
Order shall be rescinded and revised to review and consider [Complainant’s
Complaint] under the standards applicable to complaints under the [Code].” R.R. at
681a (italics omitted). The Commission found merit in West Penn’s argument that
the [p]arties litigated and created an evidentiary record . . .
based on whether West Penn’s proposed work plan violated
the Code, a Commission [r]egulation, or a Commission
7
[o]rder [and that] the [p]arties had no notice that [the]
proceeding would, instead, be evaluated under a newly
created ‘equitable/fairness’ standard; nor did they have the
opportunity to address or introduce evidence to support this
standard since it was altered after the record closed and an
Initial Decision was issued.
R.R. at 696a-697a.
Upon considering West Penn’s reconsideration petition’s merits, the
Commission referenced the July 2017 Order, acknowledging:
On exercise of our review of the record, we found that,
although West Penn’s actions were consistent with its . . .
VMP[] and did not violate any provision of the Code, a
Commission [r]egulation or Commission [o]rder, the
mere finding of such was not sufficient to provide an
‘equitable’ result to [Complainant] under the specific facts
of [the Complaint].
R.R. at 684a (emphasis added; footnote omitted). Notwithstanding, later in the same
October 2018 Order, in direct contradiction of its earlier representation, the
Commission stated: “In our July 2017 Order we were clear in our conclusion that,
under the specific facts of the instant dispute, West Penn’s application of herbicides
as part of its vegetation management, would be unreasonable and, therefore, violate
Section 1501 of the Code[.]” R.R. at 698a (emphasis added; italics omitted). The
Commission further explained that, in the “July 2017 Order[,] we expressly
considered and found unpersuasive under the facts of this dispute, the utility’s
reliance on and general reference to, its procedures and policies, with little or no
regard to the specific topology and site characteristics of the area[.]” R.R. at 699a
(italics omitted). Based on Complainant’s testimony, corroborated by the record
evidence pertaining to the proximity of the wells to the ROW, the Commission found
that Complainant proved it would be unreasonable for West Penn to apply its
herbicide treatment to the ROW. The Commission rejected West Penn’s contention
that the Commission lacks jurisdiction over its herbicide use, referencing this Court’s
8
decision in West Penn Power Co. v. Pennsylvania Public Utility Commission, 578
A.2d 75 (Pa. Cmwlth. 1990) (West Penn I) for the proposition that the Commission
has subject matter jurisdiction over a public utility’s vegetation management.
Accordingly, with the October 2018 Order, the Commission rescinded
the July 2017 Order, reversed the Initial Decision, sustained Complainant’s
Complaint, and prohibited West Penn from using herbicides on the subject ROW
until the date that a public or alternative water source for the property is
available.13 West Penn appealed to this Court.14
13
Commissioners Coleman and Norman J. Kennard issued a Joint Dissenting Statement
asserting, inter alia, that Complainant failed to meet his burden of proof in that his testimony
constituted mere opinion and speculation, that the Commission’s opinion lacked sufficient detail as
required under Section 703(e) of the Code – specifically that the Commission determined that West
Penn’s plan was unreasonable, and “the testimony of a non-expert layman outweigh[ed] the
testimony” of West Penn’s two expert witnesses and one lay witness, without any explanation
therefor. R.R. at 678a. In addition, the Commissioners contended that the Commission’s
jurisdiction over a public utility’s use of herbicides is unclear. See R.R. at 679a.
14
This Court has explained:
On a petition to review a decision of [the Commission], our standard
of review is limited to determining whether substantial evidence
supports the necessary findings of fact, whether [the Commission]
erred as a matter of law, and whether constitutional rights were
violated. [Coal. for Affordable Util. Servs. & Energy Efficiency in
Pa. v. Pa. Pub. Util. Comm’n], 120 A.3d [1087,] 1094 [(Pa. Cmwlth.
2015)]. We defer to [the Commission’s] interpretation of the . . .
Code and its own regulations unless [the Commission’s]
interpretations are clearly erroneous. Id. at 1095. We may not
substitute our judgment for that of [the Commission] ‘when
substantial evidence supports the [Commission’s] decision on a
matter within the [C]ommission’s expertise.’ Id. (internal quotation
marks and citation omitted). ‘Judicial deference is even more
necessary when the statutory scheme is technically complex.’ Id.
(internal quotation marks and citation omitted). On issues of law,
‘our standard of review is de novo and our scope of review is
plenary.’ Id.
Retail Energy Supply Ass’n v. Pa. Pub. Util. Comm’n, 185 A.3d 1206, 1220 (Pa. Cmwlth. 2018)
(footnote omitted).
9
Commission Jurisdiction
West Penn contends that the Commission lacks jurisdiction to restrict its
herbicide use because, under the CSL, only the Pennsylvania Department of
Environmental Protection (DEP), the Environmental Quality Board (EQB) and the
Environmental Hearing Board (EHB) are authorized to regulate potential surface and
groundwater contamination. Further, West Penn asserts that, pursuant to the
Pesticide Control Act, the Pennsylvania Department of Agriculture (PDA)
exclusively regulates herbicide use and application.
This Court has held:
[P]ublic utility service embraces vegetation
management. The [Commission] has full authority to
enforce the provisions of the [Code]. Certain acts, done
while rendering utility service, fall within the ambit of the
[Commission’s] jurisdiction under [Section 1501 of the
Code] over character of utility service. In particular,
vegetation management activities by an electric utility
fall within the [Code’s] definition of service in [Section
102 of the Code,] 66 Pa.C.S. § 102.[15] Utility service ‘is
On March 27, 2019, Energy Association of Pennsylvania filed an amicus curiae brief urging
this Court to reverse the Commission’s October 2018 Order.
15
Section 102 of the Code defines “service” as:
Used in its broadest and most inclusive sense, includes any and all
acts done, rendered, or performed, and any and all things furnished or
supplied, and any and all facilities used, furnished, or supplied by
public utilities, or contract carriers by motor vehicle, in the
performance of their duties under this part to their patrons,
employees, other public utilities, and the public, as well as the
interchange of facilities between two or more of them, but shall not
include any acts done, rendered or performed, or any thing furnished
or supplied, or any facility used, furnished or supplied by public
utilities or contract carriers by motor vehicle in the transportation of
voting machines to and from polling places for or on behalf of any
political subdivision of this Commonwealth for use in any primary,
general or special election, or in the transportation of any injured, ill
or dead person, or in the transportation by towing of wrecked or
10
not confined to the distribution of electrical energy, but
includes ‘any and all acts’ related to that function.’ [West
Penn I, 578 A.2d at 77] (citing 66 Pa.C.S. § 102). See also
Popowsky [v. Pa. Pub. Util. Comm’n,] 653 A.2d [1385,]
1389 [(Pa. Cmwlth. 1995)] (‘utility’s maintenance of
vegetation is a regulated service even though fault, either on
the part of the utility or the customer, has no relevance to
the existence of vegetation maintenance as a service.’)[.]
PECO Energy Co. v. Twp. of Upper Dublin, 922 A.2d 996, 1004-05 (Pa. Cmwlth.
2007) (emphasis added; citations omitted).
Section 701 of the Code, pertaining to complaints, states, in relevant
part:
The [C]ommission, or any person, corporation, or municipal
corporation having an interest in the subject matter, or any
public utility concerned, may complain in writing, setting
forth any act or thing done or omitted to be done by any
public utility in violation, or claimed violation, of any law
which the [C]ommission has jurisdiction to administer,
or of any regulation or order of the [C]ommission. Any
public utility, or other person, or corporation likewise may
complain of any regulation or order of the [C]ommission,
which the complainant is or has been required by the
[C]ommission to observe or carry into effect.
66 Pa.C.S. § 701 (emphasis added). Thus, the Commission may only sustain a
complaint where the public utility violates the Code, Commission regulation or a
Commission order. As the PECO Energy Court explained, a utility’s vegetation
management is a regulated service within the Commission’s jurisdiction.
The Complaint, and the July 2017 and October 2018 Orders pertained to
the manner in which West Penn was to conduct its vegetation management. In
response to the Complaint, pursuant to Sections 701 and 1501 of the Code, the
disabled motor vehicles, or in the transportation of pulpwood or
chemical wood from woodlots.
66 Pa.C.S. § 102.
11
Commission considered whether West Penn’s planned herbicide use violated “any
law which the [C]ommission has jurisdiction to administer, or . . . any regulation or
order of the [C]ommission[,]” 66 Pa.C.S. § 701, specifically, whether such is an
unreasonable vegetation management method under Section 1501 of the Code.
The Commission does not have jurisdiction to administer the CSL or the Pesticide
Control Act. However, here, the Commission did not improperly administer the CSL
or Pesticide Control Act, i.e., the Commission did not regulate surface water and
groundwater contamination. Rather, the Commission agreed with Complainant that
West Penn’s plan to use herbicides as part of its vegetation management was not
reasonable under Section 1501 of the Code. The Commission’s October 2018 Order
addressed the reasonableness of the utility service under the mandates of Section
1501 of the Code. See PECO Energy. The Commission did not and could not
prohibit use of herbicides at the subject location under the CSL or the Pesticide
Control Act; nor could it explicitly permit such use pursuant to the CSL or Pesticide
Control Act. In accordance with Section 701 of the Code, the Commission reviewed
compliance with laws and regulations which the Commission is authorized to
administer, and not the CSL or the Pesticide Control Act. The Commission need not
refrain from evaluating whether a public utility’s vegetation maintenance is
reasonable16 under Section 1501 of the Code simply because that maintenance
involves herbicide use.17
West Penn urges this Court to apply the two-step process outlined in
Department of General Services v. Ogontz Area Neighbors Ass’n, 483 A.2d 448 (Pa.
1984), to resolve a power conflict among governmental agencies and “to determine
which entity the legislature intended to have preeminent powers over a given area of
16
Accepting West Penn’s argument would deprive the Commission of the right to consider
the reasonableness of a public utility’s VMP whenever herbicides or pesticides are included therein.
17
A Commission conclusion that herbicide use is reasonable under Section 1501 of the
Code does not dictate that the use is permissible under the CSL or Pesticide Control Act.
12
regulation.”18 Del. Riverkeeper Network v. Sunoco Pipeline L.P., 179 A.3d 670, 694
(Pa. Cmwlth. 2018). For the aforementioned reasons, this Court concludes that there
is no conflict in the instant case in the use of powers between the Commission and the
other agencies. Accordingly, we decline to apply the Ogontz test to the present
matter and hold that the Commission had jurisdiction to render a decision on the
Complaint.
Substantial Evidence and Complainant’s Burden
Next, West Penn argues that the Commission’s finding of a violation of
Section 1501 of the Code is not based on substantial evidence.
Findings of fact supporting an agency adjudication must be supported by
substantial evidence. See 2 Pa.C.S. § 704. “Substantial evidence is defined as ‘such
relevant evidence that a reasonable mind might accept as adequate to support a
conclusion.’” Arctic Cat Sales Inc. v. State Bd. of Vehicle Mfrs., Dealers &
Salespersons, 110 A.3d 242, 248 n.5 (Pa. Cmwlth. 2015) (quoting Kerr v. Pa. State
Bd. of Dentistry, 960 A.2d 427, 436 (Pa. 2008)).
Section 332(a) of the Code specifies that “the proponent of a rule or
order has the burden of proof.” 66 Pa.C.S. § 332(a). Thus, “[a]s the party filing a
18
The Pennsylvania Supreme Court summarized the Ogontz test in Hazleton Area School
District v. Zoning Hearing Board, 778 A.2d 1205, 1210 (Pa. 2001), stating:
The first step requires the reviewing court to determine, through
examination of the statutes, which governmental entity, if any, the
General Assembly expressly intended to be preeminent. In the event
there is no such express legislative mandate, the second step requires
the court ‘to determine legislative intent as to which agency is to
prevail . . . turn[ing] to the statutory construction rule that legislative
intent may be determined by a consideration, inter alia, of the
consequences of a particular interpretation.’
Hazleton, 778 A.2d at 1210 (quoting Ogontz, 483 A.2d at 455) (emphasis in original; citation
omitted).
13
formal complaint with the [Commission], [Complainant] had the burden of
establishing that [West Penn] failed to provide . . . reasonable services.” Aronson v.
Pa. Pub. Util. Comm’n, 740 A.2d 1208, 1211 (Pa. Cmwlth. 1999).
At the ALJ hearing, Complainant expressed his concerns about the
planned herbicide use, stating:
[E]verything I read about this spray is you got to have to
[sic] all the protection on, protective gloves and respirators,
glasses. After you’re done, you got to wash off. You
know, everything I read about it tells me that it’s not good.
And the same with years ago. 1968 Agent Orange over in
Vietnam.
R.R. at 74a-75a. On cross-examination, Complainant testified:
Q. [Complainant], your opinion that you are concerned that
the herbicides will get into your water and be unsafe, that’s
not based on any scientific study or any science, is it?
A. No. That is based on what I heard about herbicides in
the last 50 years.
....
Q. I’m sorry, [Complainant], what’s your educational
background?
A. My educational background, I don’t have very much of
one. I went to work when I was 16 years old as a bricklayer
helper, and then I went up to bricklayer. And I’ve been a
brick[]layer since I was 20 years old and I’m 64 now.
....
Q. So your opinion that the use of herbicides at your
property is unsafe, it’s just based on your opinion; correct?
A. Well, I seen what it did to people throughout life. I’ve
got friends of mine that are dying from that Agent Orange,
from herbicides, for one thing. And I see when they spray,
you know, what could happen, it kills this, kills that. I seen
it.
R.R. at 89a-91a.
14
This Court has held that “[m]ere bald assertions, personal opinions or
perceptions do not constitute evidence.” Mid-Atlantic Power Supply Ass’n v. Pa.
Pub. Util. Comm’n, 746 A.2d 1196, 1200 (Pa. Cmwlth. 2000). Moreover,
“speculation does not amount to substantial evidence. Substantial evidence requires
more than a scintilla of evidence or suspicion of the existence of a fact to be
established.” Bobchock v. Unemployment Comp. Bd. of Review, 525 A.2d 463, 465
(Pa. Cmwlth. 1987); see also W.J. Menkins Holdings, LLC v. Douglass Twp., 208
A.3d 190 (Pa. Cmwlth. 2019).
Complainant’s evidence consists entirely of his property’s description,
and his personal opinion, unsubstantiated concerns and speculation that spraying
herbicides would be harmful to his water supply. Importantly, West Penn did not
plan to spray herbicides on the vegetation but, rather, to use the Cut Stump
Application, and Complainant offered no evidence demonstrating how that method,
or the specific herbicides to be used, would endanger his drinking water, or otherwise
be unreasonable.
The Commission nevertheless concluded:
[W]e find that [Complainant] has carried his burden of
proving that the risk of herbicides contaminating his wells,
which are the sole source of water to his property, if West
Penn used herbicides within the [ROW], is too substantial
to ignore and, therefore, it would be unreasonable for West
Penn to use its preferred method of vegetation management
for this particular property. On this basis, we find that
[Complainant] has satisfied his burden pursuant to Section
701 of the Code, 66 Pa.C.S. § 701[.]
R.R. at 709a. The Commission further reasoned:
The lay testimony of [Complainant], corroborated by the
uncontested facts regarding the close proximity to his wells
to the ROW where the herbicides are proposed to be applied
supports our determination that we articulated in the July
2017 Order [wherein] we analyzed the record and
15
concluded that, on the particular facts present here,
[Complainant] is entitled to relief.
R.R. at 710a (italics omitted). Finally, the Commission stated: “All witnesses were
found by the presiding ALJ to be credible. However, we shall adopt the position of
[Complainant] concerning the lay testimony, which is corroborated and uncontested
concerning the location of his wells at the subject property.” R.R. at 711a.
West Penn disputes the Commission’s conclusion that Complainant
carried his burden. It compares Complainant’s evidence to that presented in Bureau
of Corrections v. City of Pittsburgh, Pittsburgh City Council, 532 A.2d 12 (Pa. 1987).
In that case, objectors protested a conditional use application for placement of a state
prisoner pre-release center in their community. After a hearing at which objectors
voiced their opposition, Pittsburgh City Council denied the application and the
Allegheny County Common Pleas Court affirmed. On appeal, this Court reversed,
holding that the objectors had not met their burden of showing that the facility would
threaten the community. On further appeal, the Pennsylvania Supreme Court
affirmed this Court, explaining:
‘Substantial evidence’ is ‘relevant evidence as a reasonable
mind might accept to support a conclusion.’ Valley View
Civic Ass[’n v. Zoning Bd. of Adjustment], . . . 462 A.2d
[637,] 640 [(Pa. 1983)] (citations omitted). The evidence
presented by the objectors consisted of testimony of various
residents . . . . The testimony showed that many of the
residents perceived that the addition of the center to the
neighborhood would ruin the neighborhood for various
reasons. For example, there were statements made
concerning the high crime rate in the area, the number of
bars in the area, and the existence of a house of prostitution
in the area. There was also concern voiced about the
numerous elderly and female residents in the area. Finally,
concern over the effect on property values which would be
caused by the center was expressed. The testimony of the
neighborhood’s residents, however, was not substantiated
by facts but was no more than their bald assertions,
personal opinions, and perceptions of the pre-release
16
center and the area. They did not present any studies,
police records, property valuations or any type of
substantive evidence upon which their fears were based,
which would lead a reasonable mind to conclude that
the facility would be detrimental to the community’s
general welfare. Although it had ample opportunity to do
so at prior stages of these proceedings, the City, for
whatever reason, failed to introduce any evidence to bolster
the claims voiced by the objectors.
Bureau of Corr., 532 A.2d at 14 (emphasis added; internal record citation omitted).
A review of the record evidence reveals that, like the objectors in Bureau
of Corrections, Complainant offered nothing more than his personal opinion in
seeking to establish his burden that West Penn’s proposed herbicide use would harm
his property and was, thus, unreasonable. Complainant opposed herbicide spraying,
presented no evidence pertaining to the Cut Stump Application or potential harm
therefrom and offered no scientific evidence or expert testimony.19 Therefore, West
Penn’s expert testimony that the proposed Cut Stump Application was safe and
reasonable was unrebutted, credible evidence.
This Court has held that “a court should not substitute its judgment for
that of the Commission when substantial evidence supports the Commission’s
decision on a matter within the Commission’s expertise.” UGI Utils., Inc. – Gas Div.
v. Pa. Pub. Util. Comm’n, 863 A.2d 144, 148 n.4 (Pa. Cmwlth. 2004) (emphasis
added). However,
an agency’s administrative expertise does not relieve it of
the obligation to make factual findings ‘supported by the
substantial and legally credible evidence.’ [Pa. Labor
Relations Bd. v.] Sand’s Rest[.] Corp[.], . . . 240 A.2d [801,]
19
“[A]s a general rule, expert testimony is required where the issues require scientific or
specialized knowledge or experience to understand.” Dep’t of Transp. v. Agric. Lands
Condemnation Approval Bd., 5 A.3d 821, 828-29 (Pa. Cmwlth. 2010). “Certain questions cannot be
determined intelligently merely from the deductions made and inferences drawn from practical
experience and common sense. On such issues, the testimony of one possessing special knowledge
or skill is required in order to arrive at an intelligent conclusion.” Id. at 829 (citation omitted).
17
805 [(Pa. 1968)]. Administrative expertise can be used to
resolve conflicts in the testimony and to draw reasonable
inferences from the facts of record. However, an agency
cannot use the specialized knowledge of its
administrators as a substitute for evidence.
Kyu Son Yi, DVM v. State Bd. of Veterinary Med., 960 A.2d 864, 872 (Pa. Cmwlth.
2008) (emphasis added; citation omitted).
Herein, apart from describing his property’s physical characteristics,
Complainant failed to present any evidence that the proposed Cut Stump Application
posed a risk to his water supply sufficient to render West Penn’s proposed actions
unreasonable.20 Any expertise that the Commission may have in vegetation
management may not be used as “a substitute for [that] evidence.” Id. Accordingly,
Complainant did not meet his burden and substantial evidence does not support the
Commission’s decision sustaining Complainant’s Complaint.21
For all of the above reasons, the Commission’s October 2018 Order is
reversed.
___________________________
ANNE E. COVEY, Judge
Judge Fizzano Cannon did not participate in the decision in this case.
20
Apart from the proximity of the wells to the area to be treated, the October 2018 Order
does not describe the basis upon which the Commission concluded that the proposed Cut Stump
Application and herbicides to be used would create a risk of contamination “too substantial to
ignore[.]” R.R. at 709a.
21
Given that the Commission’s October 2018 Order is not supported by substantial
evidence, this Court need not address West Penn’s other issues.
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
West Penn Power Company, :
Petitioner :
:
v. :
:
Pennsylvania Public Utility :
Commission , : No. 1548 C.D. 2018
Respondent :
ORDER
AND NOW, this 2nd day of October, 2019, the Pennsylvania Public
Utility Commission’s October 25, 2018 order is reversed.
___________________________
ANNE E. COVEY, Judge