IN THE SUPREME COURT OF OHIO In the Matter of the Complaint of Mary-Martha and Denis Corrigan, CASE NO. 2014-0799 vs. Appellants, On Appeal from the Public Utilities Commission of Ohio Case No. 09-492-EL-CSS The Cleveland Electric Illuminating Co. et al., Appellees. APPELI,ANTS' MIVIERIT BRIEF Lester S. Potash (#0011009) 25700 Science Park Drive, Suite 270 Beaachwood, Ohio 44122 Tel: (216) 771-8400 Fax: (216) 771-8404 E-mail: Isp@potash-law.com Counsel for Appellants Michael DeWine (#0009181) Ohio Attorney General William L. Wright (#0018010) Section Chief Thomas Gerard Lindgren (#0039210) (Counsel of Record) Assistant Attorney General Public Utilities Section 180 East Broad Street, 6th Floor Columbus, OH 43215 Tel: (614) 466-4397 Fax: (614) 644-8767 thomas.lindgren@puc. state. oh. us._. ^..,..:., s...., ; % <;^..,......,,.. ' ^.,. ;:'... Counsel for Appellee J 'FD_IECE^VED Public Utilities Commission of Ohio n JUL2 4 2014 CLERK OF COURT
David A. Kutik (#0006418) (Counsel of Record) Lydia M. Floyd (#0088476) JONES DAY 901 Lakeside Avenue Cleveland, OH 44114 Telephone: (216) 586-3939 Facsimile: (216) 579-0212 E-mail: dakutik(a,),jonesday.com E-mail: ltlovd@@j onesday.com James W. Burk (#0043808) Carrie M. Dunn (#0076952) FIRSTENERGY SERVICE COMPANY 76 South Main Street Akron, OH 44308 Telephone: (330) 384-5861 Facsimile: (330) 384-3875 E-mail: burkj@firstenergycorp.com E-mail: cdunn@firstenergycorp.com Counsel for Intervenor The Cleveland Electric Illuminating Company
TABLE OF CONTENTS Page Table of Authorities...................................................... ii Statement of the Facts........................................................ 1 Argument...19 Proposition of Law No. 1: The Commission's Order was unreasonable or unlawful as the reliable and probative evidence does not support the finding that trimming and pruning of the Corrigans' tree is not a viable option.... 20 Proposition of Law No. 2: The Commission's Order was unreasonable or unlawful in that removal of the Corrigans' tree contravened the Commission's policy to preserve vegetation with removal only when trimming and pruning are not viable options.................................... 24 Proposition of Law No. 3: The Commission's Order was unreasonable or unlawful as the reliable and probative evidence did not support the conclusion that the Corrigans' tree interfered or may interfere with CEI's transmission lines................................................. 26 Conclusion......30 Certificate of Service...................................................... 31 Appendix Notice of Appeal to the Ohio Supreme Court (May 16, 2014)............... Appx. 1 Entry on Rehearing, Public Utilities Commission of Ohio (May 14, 2014)... Appx. 6 Opinion and Order, Public Utilities Commission of Ohio (Mar 26, 2014)... Appx. 11 Application for Rehearing (Apr. 21, 2014)............................. Appx. 26 Ohio Adm.Code 4901:1-10-06................................ Appx. 40 Ohio Adm.Code 4901:1-10-27............... :.................... Appx. 41 mi-
Cases and Administrative Decisions Cases TABLE OF AUTHORITIES Page Cincinnati Baseball Club Co. v. Eno, 112 Ohio St. 175, 180-181, 147 N.E. 86 (1925)... 28 Corrigan v. Illum. Co., 122 Ohio St.3d 265, 2009-Ohio-2524, 910 N.E.2d 1009............................................... 1, 2, 4, 5, 17 Corrigan v. Illum. Co., 174 Ohio App.3d 360, 2009-Ohio-684, 887 N.E.2d 363, rev'd 122 Ohio St.3d 265, 2009-Ohio-2524, 910 N.E.2d 1009....................... 2,4 Grossman v. Pub. Util. Comm., 5 Ohio St.2d 189, 214 N.E.2d 666 (1966)................ 19 HealthSouth Corp. v. Testa, 132 Ohio St.3d 55, 2012-Ohio-1871, 969 N.E.2d 232... 20 Administrative Decisions In the Complaint of Mary-Martha and Dennis Corrigan v. Cleveland Electric Illuminating Company, Pub. Util. Comm. No.09-492-EL-CSS (Opinion and Order)... passim (Mar 26, 2014) In the Complaint of Mary-Martha and Dennis Corrigan v. Cleveland Electric Illuminating Company, Pub. Util. Comm. No.09-492-EL-CSS (Entry on Rehearing)............. 6 (May 14, 2014) In the Complaint of Leo and Cindy Jeffers and Ilene ]effers v. Toledo Edison Company, Pub. Util. Comm. No. 10-430-EL-C5S, Opinion and Order (Jan. 23, 2013)... 7, 18, 24 In the Complaint of Wimmer Family Trust v. Ohio Edison Company, Pub. Util. Comm. No. 09-777-EL-CSS, Opinion and Order (Jan. 27, 2011)........................... 18 Statutes and Administrative Regulations Ohio Revised Code R.C.4903.13...... R.C.4905.02......18 R.C.4905.03(A)(3)............ 18 R.C.4905.03(C)........18 -ii-
Ohio Administrative Code Ohio Adm.Code 4901:1-10-06............................................... 7 Ohio Adm.Code 4901:1-10-27............................................... 17 Ohio Adm.Code 4901:1-10-27(E)(1)....................,................... 8 Miscellaneous Federal Energy Regulatory Commission, Frequently Asked Questions, Tree Trimming and Vegetation Management Landowners, http://www.ferc.gov/help/faqs/tree-veget.asp (Accessed July 23, 2014)............ 15 Federal Energy Regulatory Commission, Vegetation Reliability Standard, FAC-003... 15 Institute of Electrical and Electronics Engineers, http://standards.ieee.org/about/nesc/ (Accessed July 21, 2014).............................................. 7 Institute of Electrical and Electronics Engineers, National Electric Safety Code.... 7, 11, 15, 16 Northeast blackout of 2003, http://en.wikipedia.org/wiki/northeast_blackout_of2003 (Accessed July 18, 2014)...................................._........... 12 2013 Ohio Traffic Crash Facts, Ohio Department of Public Safety, Table 5.07, Unit Statistics Heavy Truck Crashes, http://www.publicsafety.ohio.gov/links/2013crashfacts.pdf (Accessed July 23, 2014) 28 -ii.i-
Statement of the Facts Introduction In 2004, appellants Mary-Martha and Denis Corrigan ("Corrigans") initiated an action in the Cuyahoga County Common Pleas Court to save their silver maple tree, the sole tree on their property, from destruction at the hands of intervenor, the Cleveland Electric Illuminating Company ("CEI"). The Corrigans' tree stood within the right-of-way granted to CEI. CEI claimed that the tree interfered or threatened to interfere with CEI's transmission lines, thus the tree was subject to removal per the terms of the right-of-way. The common pleas court, affirmed by the Eighth District Court of Appeals, determined that the Corrigans' tree did not endanger or threaten to endanger CEI's ability to provide reliable, safe, and efficient electrical service, and issued an order restraining CEI from removing the Corrigans' tree. Accepting CEI's appeal, this Court held that a utility's management of vegetation fell within the exclusive province of the Public Utilities Commission of Ohio ("PUC") depriving the lower courts of subject matter jurisdiction. Corrigan v. Illum. Co., 122 Ohio St.3d 265, 2009-Ohio-2524, 910 N.E.2d 1009. The Corrigans thereafter filed their complaint with the PUC seeking the same relief granted by the law courts. Instead of (1) recognizing the decades of proper maintenance of the Corrigans' tree so that it did not and would not interfere or threaten to interfere with CEI's operations and (2) enforcing its policy of retaining, not destroying, vegetation within a right-ofway, the PUC issued its Order authorizing CEI's removal and destruction of the Corrigans' tree from which the Corrigans' have taken their appeal to this Court. Page -1-
88 Years of Vegetation Care and Maintenance That Neither Interfered Nor Threatened to Interfere with CEI's Transmission Lines The First 77 years (1926 to 2003) In 1926, CEI was granted a right of way over a parcel of property, subsequently acquired by the Corrigans, for the purpose of constructing and maintaining transmission lines for the distribution of electricity. (Testimony of Rebecca Spach, Hearing Ex. 6 ("Spach") at 10, Attachment RS-3.) This right of way permitted entry onto the designated land by CEI, Id. with full authority to cut and remove any trees, shrubs, or other obstructions [within the right-of-way] which may interfere or threaten to interfere with the construction, operation and maintenance of said transmission lines. CEI constructed 138kV transmission lines running north-south through the entire rightof-way. (Spach at 10.) Through 2003, CEI provided care to and maintenance, i.e., trimming and pruning, of the vegetation within the right-of-way (as well as adjoining rights-of-way). Through 2003, CEI's maintenance of this vegetation assured that such neither interfered nor threatened to interfere with CEI's transmission lines in that at no time during CEI's vegetation care and maintenance had CEI sustained a power outage, interruption of, or interference with electrical service attributable to vegetation within the subject right-of-way. Corrigan v. Illum. Co., 175 Ohio App.3d 360, 2008-Ohio-684, 887 N.E.2d 363, 32, reversed, 122 Ohio St.3d 265, 2009-Ohio-2524, 910 N.E.2d 1009. Not once during CEI's vegetation care and maintenance had CEI been issued a citation by or had it received any sanction from the PUC in connection with CEI's vegetation care and management within the right-of-way. Id. Page -2-
The Corrigans acquired their home on Overlook Drive in 1975, subject to CEI's right-ofway. (Transcript of July 25, 2013 Hearing ("Tr.") 8, 12.) At the eastern edge of, but within the right-of-way stood the Corrigans' silver maple tree. (Tr. 12.) CEI's transmission lines ran above, but not directly overhead of the Corrigans' tree. For illustrative purposes only, below is a not-to-scale depiction of CEI's right-of-way (rectangle), transmission lines (parallel dashed lines), property line between the Corrigans' property and the adjacent property to the west (dotted line), and the silver maple tree (circle). (Tr. 22-23, Corrigans' Hearing Exhibits 3 and 4.) (Area of right-of-way on Adjacent Property) N` (CEI's traiisrnissiori lines) (Corrigans' Property Line) (Area of right-of-way on Corrigans' Property) ------------------------------------ O (Tree) Until 2004, CEI dutifully and regularly trimmed and pruned the Corrigans' tree. Tr. 10-11. At no time during these years had CEI ever notified the Corrigans that their tree interfered or threatened to interfere with CEI's ability to provide reliable, safe, and efficient electrical service. (Tr. 13-14, 124, 152, 156.) In 2004, CEI notified the Corrigans that it (CEI) would no longer provide vegetation care and maintenance within the right-of-way and that it intended to remove the Corrigans' tree. (Tr. 14-15, 17, Corrigans' Hearing Exhibit 1.) The Corrigans objected to CEI's proposed destruction of their tree, (Tr. 15), and offered, at their expense, to provide care and maintenance comparable to that which CEI practiced over the decades. (Tr. 18, Corrigans' Hearing Exhibit 2.) CEI Page -3-
rejected the Corrigans' offer and gave notice of the proposed date of the tree's destruction. (Tr. 16-17.) The Past 11 Years (July 2004 to June 27, 2014) In July 2004, the Corrigans filed for injunctive relief in the Cuyahoga County Common Pleas Court which issued a temporary restraining order preventing CEI's destruction of the Corrigans' tree. Corrigan, 122 Ohio St.3d 265, 2009-Ohio-2524, 910 N.E.2d 1009, at 3. Folllowing a hearing on the Corrigans' motion for a preliminary injunction, the trial court found: "[The company has begun] a`clear cut' policy to deal with vegetation maintenance on its transmission line easements. Such an approach may be a reasonable exercise of [the company's] authority, but such authority is not unbridled nor is it arbitrary." It went on to find that evidence had been presented to show that the silver maple did not interfere or threaten to interfere with the transmission lines, and it set a date for a permanent-injunction hearing. (Brackets sic.) Id at 4. Subsequently, the trial court issued a permanent injunction enjoining CEI from removing the Corrigans' tree. Id. at 6. On appeal, and in affirming the trial court's injunction, the appellate court determined that the company's right to remove trees is limited. [Corrigan v. Illunz. Co., 175 Ohio App.3d 360, 2008-Ohio-684, 887 N.E.2d 363,] at 20. After noting that (1) the utility had not received a single citation or experienced any problems with the FAA or Army Corps of Engineers as a result of the tree, (2) the Corrigans had personally paid to have the tree pruned and to have a slow-growth hormone implanted, and (3) the community had not experienced any service interruptions due to the Corrigans' tree, the appellate court concluded that the tree does not pose a possible threat to the transmission lines. Id. at 24-32. Corrigan, 122 Ohio St.3d 265, 2009-Ohio-2524, 910 N.E.2d 1009 at 6. Page -4-
In addition to the Corrigans' providing yearly care and maintenance to their tree, (Tr. 59), CEI continued to monitor the Corrigans' tree by means of on-the-ground and in-the-air inspections. (Tr. 165-167.) At no time during the litigation process had CEI notified the Corrigans or any court that the tree, in its then current condition, presented an immediate hazard to CEI's transmission lines or to CEI's ability to provide reliable, safe, and efficient electrical service. At no time during the litigation process had CEI sustained a power outage, interruption of, or interference with electrical service attributable to the Corrigans' tree or attributable to the Corrigans' care and maintenance of their vegetation within the right-of-way. Not once during this period of litigation had CEI been issued a citation by or sanction from the PUC in connection with the Corrigans' tree or the Corrigans' vegetation care and management within the right-of-way. (Tr. 26.) This Court accepted CEI's appeal from the appellate court's affirmance of the trial court's order. Instead of viewing the matter as one of real estate law, i.e., the interpretation of the rightof-way and the rights granted to and retained by the parties, this Court declared the issue as concerning utility vegetation management falling within the exclusive jurisdiction of the PUC, and outside the subject matter jurisdiction of the law courts. Corrigan, 122 Ohio St.3d 265, 2009-Ohio-2524, 910 N.E.2d 1009, at 21. Immediately following this Court's decision, the Corrigans filed their complaint with the PUC seekirlg to preserve their tree. The PUC issued an order staying any adverse action by CEI against the Corrigans' tree during pendency of the proceedings before the PUC. Page -5-
At no time during the proceedings before the PUC had CEI notified the Corrigans or the PUC that the tree, in its then current condition, presented an immediate hazard to CEI's transmission lines or to CEI's ability to provide reliable, safe, and efficient electrical service. At no time during the proceedings before the PUC had CEI sustained a power outage, interruption of, or interference with electrical service attributable to the Corrigans' tree or to the Corrigans' care and maintenance of their vegetation within the right-of-way. And, not once during this period had CEI been issued a citation by or sanction from the PUC in connection with the Corrigans' tree or the Corrigans' vegetation care and management within the right-of-way. (Tr. 168-169.) A hearing on the merits was held in July 2013 from which the PUC issued its Order rejecting the Corrigans' complaint, denying to them the relief sought. In the Complaint ofmary- Martha and Dennis Corrigan v. Cleveland Electric Illuminating Company, Pub. Util. Comm. No. 09-492-EL-CSS, Opinion and Order ("Order") (Mar. 26, 2014). The Corrigans filed an application for rehearing with the PUC. The Corrigans sought a continuation of and the PUC continued the stay order. Upon the PUC's denial of the application for rehearing, In the Complaint of Mary-Martha and Dennis Corrigan v. Cleveland Electric Illuminating Company, Pub. Util. Comm. No. 09-492-EL-CSS, Entry on Rehearing (May 14, 2014), the Corrigans filed their Notices of Appeal with this Court and with the PUC along with a motion to the PUC to stay its order pending review by this Court. In the absence of an order staying execution of the PUC order, CEI sent notice of its intention to immediately cut down the Corrigans' tree. An emergency motion for stay was filed Page -6-
with this Court. On June 25, 2014, this Court denied the motion and on June 27, 2014, CEI cut down the Corrigans' tree. The PUC's Vegetation Maintenance Policy In exercising its responsibilities in overseeing a utility's proper management of vegetation within a right-of-way, the PUC's starting point is its declared policy of the retention of vegetation without sacrificing safety and reliability. In the Complaint of Leo and Cindy Jeffers and Ilene ]effers v. Toledo Edison Company, Pub. Util. Comm. No. 10-430-EL-C5S, Opinion and Order (Jan. 23, 2013) at 10. Only when trimming and pruning are not viable options will the PUC sanction a utility's removal of a tree. Id. The PUC does not set forth specifics as to the manner for maintaining or controlling right-of-way vegetation other than via Ohio Adm.Code 4901:1-10-06, which adopts industrywide vegetation control standards, i. e., the 2007 edition of the American National Standard Institute's National Electrical Safety Code ("NESC").' The NESC sets forth minimum acceptable vertical and horizontal clearance areas between transmission lines and objects such as vegetation. (Testimony of David Kozy, CEI Hearing Exhibit 5 ("Kozy"), at 6.) For 138kV transmission lines, as involved herein, the NESC mandates a vertical clearance of 10.1 feet between the lines and an object, id., at 7, and a horizontal clearance of 9.6 feet. Id., (Tr. 103.) The PUC directs a utility to, ' Published exclusively by Institute of Electrical and Electronics Engineers, the NESC sets the ground rules for practical safeguarding of persons during the installation, operation, or maintenance of electric supply and communication lines and associated equipment. It contains the basic provisions that are considered necessary for the safety of employees and the public under the specified conditions. http://standards.ieee.org/about/nesc/ (Accessed July 21, 2014). Page -7-
establish, maintain, and comply with written programs, policies, procedures, and schedules for the inspection, maintenance, repair, and replacement of its transmission and distribution circuits and equipment. These programs shall establish preventative requirements for the electric utility to maintain safe and reliable service. Programs shall include, but are not limited to, the following facilities: * * * (f) Right-of-way vegetation control. Ohio Admin. Code 4901:1-10-27(E)(1). CEI's Vegetation Management Policy - Before and After 2000 Prior to the year 2000, and in accordance with its vegetation management policy, CEI exclusively provided regular, routine, and competent "hands-on" care and maintenance of the Corrigans' tree (as well as for the other trees in the neighborhood located within CEI's rights-ofway on adjoining properties). CEI's hands-on care and maintenance of the Corrigans' tree was provided without request by or additional cost to the Corrigans. (Tr. 13.) CEI's care and maintenance of vegetation, i. e. trimming and pruning, assured that the Corrigans' tree neither interfered nor threatened to interfere with CEI's transmission lines or CEI's ability to provide reliable, safe, and efficient electrical service to its customers. (Tr. 124.) With this proper hands-on care and maintenance, there were no reported electrical service outages or disruptions caused by or attributable to the Corrigans' tree. Aside from its own forestry division, CEI contracted with others, including the Davey Expert Tree Company ("Davey Tree"), to provide the proper hands-on care and maintenance to the vegetation within CEI's rights-of-way. (Tr. 13.) The Corrigans did not call, select, or compensate Davey Tree to provide this care and maintenance to their tree. Id. Davey Tree employees attending to the Corrigans' tree were obliged to report to CEI any perceived or actual hazards to CEI's transmission lines which may be caused by vegetation in Page -8-
general or by the tree in particular. (Tr. 218.) At no time had Davey Tree notified CEI nor had CEI notified the Corrigans that their tree interfered or threatened to interfere with CEI's transmission lines or with CEI's ability to provide the reliable, safe, and efficient electrical service. Id. Likewise, at no time had CEI received any citation for any violation involving the Corrigans' tree alleging that the tree constituted a hazard to CEI's transmission lines or violated any vegetation management statute, rule, regulation, or PUC policy. In 2000 CEI modified its vegetation management policy becoming more aggressive in removing certain vegetation within its rights-of-way, (Tr. 147), but it continued its hands-on care and maintenance of the Corrigans' tree assuring that the tree did not interfere or threaten to interfere with CEI's transmission lines. At no time between 2000 and 2003 had CEI been notified or had CEI notified the Corrigans that the tree interfered or threatened to interfere with CEI's transmission lines or the reliable, safe, and efficient provision of electrical service. (Tr. 13.) Likewise, at no time during this period between 2000 and 2003 had CEI received any citation for any claimed violation involving the Corrigans' tree as constituting a hazard to CEI's transmission lines or that its condition violated any vegetation management statute, rule, regulation, or PUC policy. For all intents and purposes, prior to 2003, with regular trimming and pruning, CEI maintained the Corrigans' tree as "compatible" vegetation which neither interfered nor threatened to interfere with CEI's transmission lines or CEI's ability to provide reliable, safe, and efficient electrical service to its customers. In 2003, CEI ceased its hands-on care and maintenance of the Corrigans' tree, (Tr. 172-173, Spach at 11), and simultaneously declared the then "compatible" tree as "incompatible" Page -9-
vegetation. (Spach at 11.) This declaration did not result from a change in Ohio law or from new rules or polies promulgated by the PUC. CEI declared, Our company's plan and policy's definition of "incompatible vegetation" is any tree that or vegetation that will grow to such height that may interfere or threaten to interfere [with CEI's transmission lines]. (`I'r. 175.) Notwithstanding that a tree stands outside of the NESC-designated hazard zones, according to CEI's "policy and plan," a tree within a right-of-way is deemed "incompatible vegetation" if the tree's potential height may interfere or threaten to interfere with CEI's transmission lines, regardless of where situated vis-a-vis CEI's transmission lines. By virtue of this new "policy and plan," CEI determined that the Corrigans' formerly compatible tree now interfered or threatened to interfere with CEI's transmission lines warranting its immediate destruction despite no change to the tree or to its location. CEI's Evidence CEI presented testimony from five witnesses: Thomas Neff, a surveyor; David Kozy, a transmission engineer; Rebecca Spach, a transmission vegetation manager; Robert Laveme, manager of education and training for the Davey Tree Expert Company; and Stephen Cieslewicz, a utility consultant. All but Mr. Neff expressed subjective opinions that the Corrigans' tree presented a clear and present danger to CEI's transmission lines necessitating its immediate removal. Mr Neff and Mr. Kozy provided objective facts of the tree's location vis-a-vis CEI's transmission lines. Thomas Neff - surveyor Thomas Neff, CEI's surveyor, discussed the overhead survey taken of the Corrigans' property and the Corrigans' tree. (Testimony of Thomas Neff, CEI Exhibit 4 ("Neff'), at 2.) He Page -10-
observed the lopsided nature of the tree noting that the overwhelming majority of the tree's crown, the top of the tree with the leaves, faces towards the Corrigans' house and away from CEI's transmission wires. (Tr. 84.) Although Mr. Neff was asked to take measurements involving the Corrigans' tree height, he was not asked to nor did he undertake any vertical or horizontal measurements for clearance purposes, i.e., between the transmission wires and the Corrigans' tree. (Tr. 80.) Neff confirmed that the Corrigans' tree was not directly underneath any of CEI's transmission lines, but off to the side. (Tr. 79.) When asked to guess the horizontal distance between the Corrigans' tree and CEI's transmission lines, Mr. Neff put it at about 23 feet. (Tr. 83.) David Kozy, transmission engineer Mr. Kozy, whose purpose was to explain the consequences of vegetation contacts with transmission lines, focused on the "sagging of transmission lines and "arcing" of electricity from the transmission lines to trees. (Kozy at 3.) Kozy confirmed that CEI's transmission lines of 138kV running through the easement and of the consequences were there a failure were vegetation to contact the lines. Id. at 4. Kozy referred to the NESC as the industry standard in prescribing clearances, and which the PUC adopted. Id. at 6. Kozy noted that the NESC sets a minimum horizontal clearance of 9.6 feet and a minimum clearance of 10.1 feet for a 138kV transmission line. Id. at 7. Kozy acknowledged that the Corrigans' tree was outside the minimum horizontal and vertical clearance distances. (Tr. 98-99, 108.) In addition to horizontal and vertical clearances, Mr. Kozy referred to arcing, a phenomenon "in which electricity can literally `jump' from the transmission line to a nearby Page -11-
object, such as vegetation, without that object actually touching the line." (Kozy at 5.) Arcing may occur with objects approximately four feet away, but Mr. Kozy confirmed that no part of the Corrigans' tree was within four feet of the transmission lines. (Tr. 98.) Kozy's sole concern was the contingency of the Corrigan's tree falling in the direction of the transmission lines. Id., at 109. Rebecca Spach, transmission vegetation manager Rebecca Spach's related CEI's self-imposed vegetation management plan which includes annual ground and bi-annual aerial patrols to inspect the overall condition. (Spach at 6.) She related CEI's definition of "incompatible vegetation" as all vegetation that will grow tall enough to interfere with overhead electric facilities with the removal of all "incompatible" trees within the transmission corridor, i.e., the areas beneath and around the transmission lines, or such dead or defective trees which pose a threat to the conductor. Id., at 6-7. Spach claimed that due to the difficulty to precisely predict the growth of a tree, "the best maintenance practice to support reliability is to remove [CEI's definition of] incompatible vegetation." Id., at 8. Spach testified of the utility's becoming increasingly sensitive to the risk of transmission line-vegetation contacts, particularly after the August 2003 blackout2 initiating a series of improvements to their transmission vegetation management program. However, Spach acknowledged that CEI's latest iteration of its vegetation management policy, the 2010 version, did not vary materially with the vegetation management plan filed with the PUC in 2000. (Tr. at ` The Northeast blackout of 2003 was a widespread power outage that occurred throughout parts of the Northeastern and Midwestern United States and the Canadian province of Ontario on Thursday, August 14, 2003. Northeast blackout of 2003, http://en.wikipedia.org/wiki/northeast-blackout-of 2003 (Accessed July 18, 2014) Page -12-
192, 195.) Thus, the current version of vegetation management plan, virtually identical to the 2000 vegetation management plan, was put into effect a full 3 years prior to the Great Blackout of 2003. Spach testified that the Corrigans' tree had grown since first observing it in 2009, but when asked how much, she could not say. (Tr. 132.) When asked for a date when the Corrigans' tree first interfered or threatened to interfere with CEI's transmission lines, Spach answered in 1997. When asked how the Corrigans' tree interfered with CEI's transmission lines, Spach stated, (Tr. 134-135.) It interferes because the tree is a silver maple tree, it's located on the transmission easement, and it has the propensity to grow into the transmission line, as well as due to the condition of that tree a branch could break out of it, the amount of decay that's in the tree, as well as or the tree could fall over. So the tree by our definition from our vegetation management plan today interferes. While the matter was before the PUC, Spach confirmed that CEI inspected the Corrigans' tree in 2009, 2011 and 2013 to assure the safe and reliable operation of the transmission system. (Spach at 11.) Similar to Kozy's opinion, Spach raised the concern that the tree "has the potential to interfere with the line by falling into it" which required its immediate removal. Id. Robert Laverne, manager of education and training for the Davey Tree Expert Company Robert Laverne testified as a tree risk assessment expert, employed by the Davey Tree Expert Company. (Testimony of Robert Laverne, CEI Hearing Exhibit 7("Laverne"), at 3.) Laverne related the "multiple structural defects that increase the likelihood of failure of one or more of the branches or one or both of the co-dominant stems." (Laverne at 4.) Laverne Page -13-
acknowledged that the Corrigans' tree was growing at a moderate rate, its branches supporting viable buds, but that the tree was in its downward cycle, thus increasing its rate of deterioration. Id., at 4, 5. He further opined that pruning was not a viable option as, in his opinion, it would require the removal of too much of the leaf area rendering the tree unable to maintain itsel Id., at 8 Laverne commented upon the tree's imbalance in that one branches from one side of the tree, the side facing the transmission lines, was severed, with "the majority of the tree fac[ing] the Corrigans' house." (Tr. 223.) Laverne further commented that strong winds could cause breakaway from the Corrigans' tree which could interfere with CEI's transmission lines, id., although he is not a utility line clearance expert. (Tr. 215.) He further acknowledged that notwithstanding the severity of storms experienced in Northeast Ohio, the Corrigans' tree had not been uprooted nor did its branches come into contact with CEI's transmission lines, (Tr. 236, 245-246), and the tree was not so fragile as to topple over if leaned on. (Tr. 238.) When asked of a define or quantify wind of a sufficient force that would adversely impact the Corrigans' tree and the transmission lines, the best Laverne could say is that "[a] wind of sufficient force is any wind that applies sufficient force to the wood which we know is weakened because of the decay to cause that to break." (Tr. 242.) Laverne also stated that given a wind of sufficient force, such could uproot an oak tree. (Tr. 247.) Laverne further acknowledged the supplement support device attached to the Corrigans' tree as a maintenance tool which may preserve the useful life of a tree, although he further stated that the supplement support device will not provide any useful effect in ten years. (Tr. 251.) Page -14-
Laverne did not review any records as to the prior maintenance of the Corrigans' tree, especially as performed by his employer, the Davey Tree Expert Company. (Tr. 217.) He could not state with certainty whether his employer uses growth retardants as part of tree care and maintenance, but that such are commonly used in the industry. (Tr. 253-254.) Laveme observed the Corrigans' tree in 2009 as well as shortly before the July 2013 hearing and stated that the Corrigans' tree was smaller in 2013, not larger, when compared with its height in 2009. (Tr. 222.) Stephen Cieslewicz, utility consultant CEI's final witness was Stephen Cieslewicz for the purpose of discussing changing industry standards following the August 2003 blackout and the vegetation management practices of CEI. (Testimony of Stephen Cieslewicz, CEI Hearing Exhibit 8 ("Cieslewicz"), at 6.) Cieslewicz began by criticizing NESC standards pre- and post-august 2003. Id., at 8. Cieslewicz commented on the 2007 implementation by the Federal Energy Regulatory Commission ("FERC") of a national standard for utility vegetation management, Vegetation Reliability Standard, FAC-003 ("FAC-003").3 Id., at 9. Cieslewicz testified that prior to FAC- ' FAC-003 does not specify how a transmission company should conduct its vegetation management (e.g., pruning, herbicides or tree removal). Rather, it specifies that the company must manage its vegetation plan to minimize electricity outages from power line contact with trees in or adjacent to the transmission line rights-of-way. Federal Energy Regulatory Commission, Frequently Asked Questions, Tree Trimming and Vegetation Management Landowners, http://www.ferc.gov/help/faqs/tree-veget.asp (Accessed July 23, 2014). FAC-003 does not even apply to CEI's transmission lines herein as such under the 200 kv threshold. FAC-003-1A.4. Additionally, FAC-003 adopts the NESC as the standard for vegetation clearance distances. FAC-003-1BR1.2.2. Page -15-
003, there were no requirements, measures or compliance standards for utility vegetation management in Ohio.4 Id., at 10. Cieslewicz defined "incompatible vegetation" as any vegetation that has the potential to grow to a mature height of a line or required clearance zone. Id. at 11. Following the August 2003 blackout, Cieslewicz undertook to review CEI's vegetation management program and concluded that such was adequate and reasonably satisfied industry and regulatory requirements. Id., at 17. Among recommendations made by Cieslewicz was the removing, not pruning, "incompatible vegetation." Id., at 19. Cieslewicz has never been onto the Corrigan property, CEI's easement, or observed, firsthand, the Corrigans' tree. (Tr. 274.) The PUC Order and Opinion In its Order and Opinion, the PUC arrived at the following findings and conclusions: The record in this case reveals that CEI's witnesses presented credible, expert testimony with respect to removal of the Tree. Three of CEI's witnesses are certified arborists. They testified that the Tree is decayed at many points within its structure and that, because of this decay, the Tree, or parts of it, are destined to fail and fall into the transmission lines. More specifically, CEI witness Laverne testified that the Tree, while still supporting living foliage, is extensively filled with decay. Mr. Laverne noted that there is a high degree of certainty that portions of the Tree will fail within the next ten years and fall into the transmission lines. He further noted that the support cable that is attached between the two trunks of the Tree will. no longer be effective within ten vears. CEI witnesses Kozy, Spach, and Laverne all emphasized that the Tree is decayed and needs to be removed in order to preserve the integrity of the transmission lines from the damaging effects that contact with the Tree might cause (Co. Ex. 5 at 7-8; Co. Ex. 6 at 12-13; Tr. at 134, 157; Co. Ex. 7 at 4-6, 8-9; Tr. at 236-237, 244). CEI witnesses Cieslewicz also stressed the public safety aspects of a tree 4 Cieslewicz either was unaware of or did not accept the PUC's adoption of the NESC clearance standards (vertical 10.1 feet, horizontal 9.6 feet) of as testified to by Kozy as well as the four feet arcing clearance, each of which the Corrigans' tree was safely beyond. Page -16-
coming into contact with an electric line, and indicated that it would not be prudent to wait for that to happen (Tr. at 318). CEI witness Spach further testified that prevailing industry practices specify removal of the Tree because it is considered incompatible vegetation, i.e., it has the potential to grow high enough to interfere with the transmission lines. Ms. Spach testified that the species of the Tree is incompatible vegetation with respect to its growth in CEI's easement because it has a mature height of 80 feet and a growth rate of three to seven feet per year. She observed the Tree and reported that it is taller than the middle and lower transmission lines and has and has grown tall enough to interfere with those lines. (Co. Ex. 6 at 12-13.) Mrs. Corrigan appeared as the Corrigans' sole witness at hearing. She testified that the Corrigans want to preserve the Tree because it is a part of their property and a value to their home (Tr. at 30). Mrs. Corrigan testified that the Tree is healthy because it is growing foliage and because other people have told her that the Tree is healthy (Tr. at 35). With respect to Mrs. Corrigan's testimony, the Commission observes that Mrs. Corrigan is not a certified arborist (Tr. at 30-31) and that her opinions about the Tree seem to be based on her personal beliefs and what other people have told her. The issues of whether the Tree is located in CEI's easement, whether CEI has an easement over the Corrigans' property, and whether the company had the right to remove trees in the easement that threaten its transmission lines have already been determined in the affirmative by the Court. Corrigan [v. Illum. Co. ] at 122 Ohio St.3d 265, 2009-Ohio-2524, 910 N.E.2d 1009, 17-19. Those issues are thus not for our consideration in this proceeding. Our sole charge in this matter is to determine whether CEI's planned removal of the Tree is reasonable. We note that under Ohio Adm.Code 4901:1-10-27, CEI must submit written programs to the Commission for the inspection, maintenance, repair, and replacement of its transmission and distribution circuits and equipment and that such programs include right-of-way vegetation control. Once submitted, if not acted upon by the Commission within a specified time, the filing is deemed approved. Such written programs (the Plan and Specifications previously noted in CEI witness Spach's testimony, Co. Ex. 6 at 4-5, Att. RS-land RS-2), originally filed in January 2001, and most recently amended in Apri12010, were submitted by CEI for the Commission' s review. The Commission did not act upon the information contained in the filings. Therefore, CEI's April 2010 written programs, which include vegetation control measures, were approved in May 2010. We can find nothing about CEI's planned removal of the Tree that conflicts with its right-of-way vegetation control measures on file at the Commission. The evidence of record reveals that the Tree is decayed extensively and that parts of it are almost certain to fail in the not-too-distant future (Tr. at 251). Moreover, Page -17-
continued pruning will cause the Tree to respond by either re-growing branches at a rapid rate back into the areas that have been pruned, or if pruning is done enough times, the Tree will run out of energy reserves and die (Co. Ex. 7 at 8-9;Tr. at 259-260). Therefore, due to the condition of the Tree, the Commission finds that pruning is not practicable. Further, CEI witnesses Kozy and Cieslewicz presented testimony as to the public safety hazards - including power outages, possible fatalities, and fire - associated with the Tree's continued existence near CEI's transmission lines (Co. Ex. 5 at 5, 8; Tr. at 100, 317-318). Complainants did not rebut the evidence of either the decayed condition of the Tree or the safety hazards that the Tree, if left standing, might cause. Accordingly, consistent with the facts presented on this record, we find that CEI reasonably determined that the Tree could potentially interfere with its transmission lines. In addition, as we stated in In the Complaint of Leo and Cindy Jeffers and Ilene Jeffers v. Toledo Edison Company, Case No. 10-430-EL-CSS, Opinion and Order (Jan. 23, 2013) at 10-11, because of the danger to customers and because of the unduly burdensome situation that might develop for a utility in trying to enforce its vegetation management policies, the Commission believes that it would be inappropriate for any utility to allow customers to manage vegetation located near power lines in a utility's easement. The Commission is also mindful that, in the past, we have stated that tree removal should be done only when pruning is not a viable option. See, Jeffers at 10. In this case, having found that pruning is not practicable, and considering the decayed state of the Tree and the obvious potential hazards to public safety, we believe that CEI is justified in its planned removal of the Tree. Finally, as we did with the public utility involved in [In the Complaint of Wimmer Family Trust v. Ohio Edison Company, Pub. Util. Comm. No. 09-777-EL-CSS] Opinion and Order (Jan. 27, 2011) at 10, the Commission would caution CEI that, while the Company should hold safety and reliability paramount when performing vegetation control near its transmission lines, it should try as well to lessen the effect of those control measures on property owners. FINDINGS OF FACT AND CONCLUSIONS OF LAW: (1) The Corrigans filed a complaint against CEI, on June 10, 2009, contesting CEI's planned removal of a tree located on the Corrigans' property. (2) CEI is a public utility as defined by R.C. 4905.02 and an electric light company, as defined in R.C. 4905.03(A)(3).5 5 The undersigned submits that reference should have been to R.C. 4905.03(C). Page -18-
Order, at 12-15 (3) On July 1, 2009, CEI filed its answer, admitting in part and denying in part the allegations contained in the complaint. (4) A settlement conference was held on August 13, 2009, however, the parties failed to resolve this matter. (5) After numerous continuances, a hearing was held on July 25, 2013. (6) The burden of proof in a complaint proceeding is on the complainant. Grossman v. Pub. Util. Comm., 5 Ohio St.2d 189, 214 N.E.2d 666 (1966). (7) Due to its condition, pruning the Tree is not practicable. (8) CEI's planned removal of the Tree is reasonable under the circumstances presented in this case. The Corrigans filed an application for rehearing raising the following issues: 1. The Order is unreasonable or unlawful as the reliable and probative evidence does not support the finding that trimming and pruning of the Corrigans' tree is not a viable option. 2. The Order is unreasonable or unlawful in that removal of the Corrigans' tree contravenes Commission policy to preserve vegetation with removal only when trimming and pruning are not viable options. 3. The Order is unreasonable or unlawful as the reliable and probative evidence does not support the conclusion that the Corrigans' tree interferes or may interfere with CEI's transmission lines The Commission denied the application for rehearing from which the Corrigans timely filed their Notices of Appeal with this Court and the PUC. Standard of Review Argument R.C. 4903.13 provides that "[a] final order made by the public utilities commission shall be reversed, vacated, or modified by the supreme court on appeal, if, upon consideration of the Page -19-
record, such court is of the opinion that such order was unlawful or unreasonable." The PUC's decision must rest upon reliable and probative evidence. HealthSouth Corp. v. Testa, 132 Ohio St.3d 55, 2012-Ohio-1871, 969 N.E.2d 232, 12. Evidence is reliable if it is dependable that is, it can be confidently trusted, i.e., there is a reasonable probability that the evidence establishes an asserted fact to be true. Id. Evidence is probative if it tends to prove the issue in question, i.e., it must be relevant in determining the issue. Id. Thus, testimony or a document is reliable if it can be depended on to state what is true and it is probative if it has the tendency to establish the truth of relevant facts. Id. The Commission's decision finds no support from either reliable or probative evidence. Proposition of Law No. 1: The Commission's Order was unreasonable or unlawful as the reliable and probative evidence does not support the finding that trimming and pruning of the Corrigans' tree is not a viable option. For generations, proper vegetation maintenance, as approved by the PUC and as practiced by CEI, consisted of the trimming and pruning the Corrigans' tree in such a manner that would assure that the tree neither interfered nor threatened to interfere with CEI's transmission lines. This proper care and maintenance over the decades of CEI's allowed the Corrigans' tree and CEI's transmission lines to co-exist without interfering or threatening to interfere with the other. As acknowledged by Spach, nothing changed after 2004 when the Corrigans undertook responsibility for the care and maintenance of their tree. (Spach at 11.) In the year 2000 the PUC did not implement new, nor did it otherwise modify existing vegetation management rules or regulations involving right-of-way vegetation mainteance vis-avis utility transmission lines. Rather, in 2000 CEI decided to radically alter its policy converting Page -20-
vegetation maintenance (trimming and pruning) to vegetation removal. (Tr. 146-147.) This radical change occurred without consideration of the PUCs policy of retaining right-of-way vegetation where such can be maintained by pruning or trimming. With this radical change CEI decreed that the Corrigans' tree, heretofore benign, became a weapon of arboreal destruction that CEI no longer would trim or prune. However, the testimony from CEI's witnesses verified that, The science and technology of tree care and maintenance remained the same, The transmission lines were not repositioned, Prior to 2000, the tree, as properly maintained by CEI, had not interfered or had not threatened to interfere with CEI's transmission lines, CEI conducted regular, periodic ground and aerial inspections of the Corrigans' tree from which there were no reported issues called to CEI's attention, The tree was not left unattended after CEI ceased its regular pruning and trimming of the Corrigans' tree, There were no growth spurts or other abnormalities connected with the tree, and, The "Great Blackout" of August 2003, which formed the major after-the-fact rationale for wanting to destroy the Corrigans' tree, was three years into the future. Nothing changed except that a tree previously and properly maintained by CEI and deemed "compatible" as of December 31, 1999, magically and mysteriously transformed on January 1, 2000, into "incompatible" vegetation which had to be immediately destroyed. The Order mentions CEI's submission of its vegetation management policy to the PUC in January 2001, and of its most recent iteration filed in Apri12010. Order at 13. This recitation ignores the testimony by CEI's witnesses that the 2010 version of CEI's vegetation management policy was comparable to the version CEI filed in 2000, i.e., this "newer" version did not vary in any material manner. (Tr. 192.) And the 2000 version of CEI's vegetation management policy Page -21-
sought the aggressive removal of vegetation that, in years past, was "compatible" and, with proper care, had co-existed with CEI's transmission lines. Not one of CEI's witnesses explained the magical transformation of the Corrigans' tree from "compatible" to "incompatible" vegetation other than "because we say so," i.e., it could possibly cause harm. According to CEI, by repeating this mantra throughout the court and administrative proceedings, it must be true - the Corrigans' tree constituted a clear and present danger. CEI's "because we say so" cannot trump the history of proper tree care and maintenance by CEI or by the Corrigans. "Because we say so" is not a reasonable basis for the severe and adverse consequences to the Corrigans and their property. Throughout these proceedings, CEI warned about the dangers of sagging, arcing, and rapid growth. These known-for-eternity dangers, i.e., not newly discovered hazards, existed prior to CEI's 2000 and 2010 vegetation management policy changes, and were taken into account by CEI in its decades-long trimming and pruning of the Corrigans' tree. Again, the testimony from CEI's witnesses unquestionably confirmed ( 1) that the dangers of sagging, arcing, or rapid growth were not the driving forces in 2000 when CEI replaced its policy of vegetation management with one of vegetation removal, and (2) at all relevant times, the Corrigans' tree stood outside any recognized zone of danger be it sagging, arcing, or rapid growth. Sagging was not a reasonable or probative concern as the tree was not underneath any transmission line and certainly not within the 9.6-foot standard of the National Electrical Safety Code. (Tr. 108.) Arcing was not a reasonable or probative concern as the tree was well outside the 4-foot clearance zone. (Tr. 98.) Rapid growth was not a reasonable or probative concern as the tree "is quite a bit smaller today than it was in 2009." (Tr. 222.) Page -22-
For 10 years, CEI has alleged the Corrigans' tree to be umnanageable, decrepit, and on its lasts roots before toppling over. Yet during all this time, and having survived tornadoes and massive winter storms, especially the just concluded winter of 2013-2014 dumping unimaginable amounts of snow and ice on the tree, this tree has not only survived, but thrived. Mrs. Corrigan's testimony and documentation, reliable and probative, reflected the treatment and condition of the tree. Where the tree needed attention to a specific issue, e.g., decay, the Corrigans saw to it that the tree received proper care and treatment. The tree was healthy, as testified to by Mrs. Corrigan and reflected in the Order at 13, because of the care given it. That decay may exist is insufficient to support a decision to cut down this healthy tree. CEI's regularly scheduled ground and aerial inspections provided adequate opportunity to observe the condition of the tree and of any interference or threatened interference, other than its mere existence, to CEI's transmission lines. This evidence not only contradicted the opinions of those who have prematurely exaggerated the reported demise of the Corrigans' tree, but proved that this tree had more fight left in it. Rote recitation of CEI's witnesses's opinion without critical analysis of any underlying bases for these opinions can not satisfy the obligation of full and fair deliberation, nor can it lead to a decision based upon reason. No evidence supported a finding that the Corrigans' tree violated or threatened to violate any established regulatory safety standard; to the contrary, all reliable and probative, i.e., nonspeculative and non-fearmongering, testimony established the tree to be outside of any hazard zone. No evidence supports a finding that the Corrigans' tree interfered or threatened to interfere with any CEI transmission line; but to the contrary, all reliable and probative, i.e., nonspeculative and non-fearmongering, testimony established that at no time had the tree interfered page-23-
or threatened to interfere with any CEI transmission line. Speculation is not reliable evidence and fearmongering is not probative evidence. With the tree's care and maintenance history by CEI and the Corrigans, where there was never any issue of the tree's "incompatibility" with CEI's transmission lines, there was no reliable or probative evidence in support of the conclusion that on-going trimming and pruning the Corrigans' tree were not viable options and that its removal was reasonable. The Order was unreasonable, thus unlawful. Proposition of Law No. 2: The Commission's Order was unreasonable or unlawful in that removal of the Corrigans' tree contravened the Commission's policy to preserve vegetation with removal only when trimming and pruning are not viable options. Implicit in all utility vegetation management activities is the utility's responsibility to minimize the removal of property owners' vegetation without sacrificing safety and reliability. In the Complaint of Leo and Cindy Jeffers and Ilene ]effers v. Toledo Edison Company, Pub. Util. Comm. No. 10-430-EL-C5S, Opinion and Order (Jan. 23, 2013) at 10. Further, only when trimming and pruning are not viable options will the Commission approve of a utility's authority to remove a tree. Id. Herein, despite all of the speculation and fear raised by CEI and despite CEI's witnesses diagnosing the tree's horrible condition, only Mrs. Corrigan was able to explain why her tree had not fallen from decay, had not broken away upon experiencing huge gusts of wind, and had never interfered or threatened to interfere with CEI's transmission lines - the tree has been properly trimmed and pruned and maintained. Despite the fact that all living things will one day succumb, nothing had been presented indicating the imminent demise of the Corrigans' tree. Page -24-
Following the injunction issued by the Cuyahoga County Common Pleas Court in 2004, the Corrigans had, within the standards of acceptable arboreal care, provided trimming, pruning, and maintenance to their tree in the same manner as the trimming, pruning, and maintenance CEI provided the Corrigans' tree. CEI's current vegetation management policy is subject to this PUC's rules, regulations, and policies. CEI's directive of virtually total vegetation removal contravenes the PUC's requirement that the utility act reasonably, not arbitrarily; and of the PUC's policy favoring species preservation. The Order arrived at several conclusions without a reasonable analysis of the evidence presented. For example, the Order concluded that it would be inappropriate for a customer to manage vegetation, or that customer trimming and pruning is not practical. Order at 14. Yet, there is nothing to explain how, since 2004, anything done by the Corrigans to trim, prune, and maintain their tree was inappropriate, especially considering that not once during the past 10 years in its regularly scheduled ground and aerial oversight of the Corrigans' tree did CEI question or challenge the methods employed by the Corrigans in maintaining their tree. Not once in the past 10 years did CEI seek relief, whether from the courts (common pleas, appellate, or supreme) or the PUC, objecting to the means or manner employed by the Corrigans' in trimming, pruning, or maintaining their tree. When asked how many times, over the past ten years, CEI's on-the-ground or in-the-air observers reported any condition calling for remedial action, the answer was "[n]one of those times." (Tr. 164-165.) Page -25-
The Corrigans' 10-year track record established that they properly managed their tree "without sacrificing safety and reliability." This is the reasonable conclusion to be drawn from the reliable and probative evidence. To overcome the PUC's policy of vegetation preservation requires CEI to present reliable and probative evidence that the Corrigans cannot properly attend to their tree. CEI has presented no such reliable or probative evidence. As such, the PUC's policy directed that the tree remain standing. Lastly, although the Order refers to the claimed impracticability of homeowners, in the aggregate, managing vegetation, there was no evidence as to how many homeowners have sought to maintain their vegetation. Of greater significance, this case is not about all homeowners who are CEI customers and face vegetation extinction, but about the Corrigans and the application of the PUC's policy in preserving their right-of-way vegetation where such can be viably maintained. The answer is best demonstrated by CEI's testimony that regardless of the outcome of this case, it will still conduct inspection flights of its transmission lines over the Corrigans' property, 2-3 times each year, with trained personnel to observe the status of vegetation in relation to its transmission lines. In other words, CEI will continue to do what it has been doing over the decades, observing what it has been observing, and taking necessary measures, where necessary. CEI's oversight activities will not change, therefore CEI will not be additionally burdened by the Corrigans' ongoing care and maintenance of their tree. Were any circumstance regarding the tree's care or its condition to have materially changed, CEI knew of remedies available and how to avail them. Page -26-
The Order omitted any discussion or analysis of the PUC's policy of vegetation retention and of vegetation removal in relation to the 10 years the Corrigans maintained their tree, all of which rendered the Order unreasonable or unlawful. Proposition of Law No. 3: The Commission's Order was unreasonable or unlawful as the reliable and probative evidence does not support the conclusion that the Corrigans' tree interfered or may interfere with CEI's transmission lines. To justify CEI's destruction of the Corrigans' tree it must demonstrate not only that such is consistent with its vegetation management policy, but, as concisely summarized in the Order, "whether CEI's planned removal of the [Corrigans' tree] is reasonable." Order at 13. The Order recognizes that a utility's fiat is secondary to the PUC's mandate to balance the rights of property owners with the utility's obligation to provide safe and reliable service. A reasoned decision starts with an analysis of all the facts, regardless of who produced them, from which conclusions are drawn, and not the reverse, i.e., drawing a conclusion then seeking facts in support. Although the Corrigans, as complainants, bear the overall burden of proof, the phrasing of the Order correctly aligns the issue as whether the destruction of the Corrigans' tree is "reasonable." The Order justified the tree's destruction as reasonable upon testimony asserting the tree's decay "and that parts of it are almost certain to fail in the not-too-distant future." Order at 13, citing Tr. 251. However, the cited testimony, discussing the supplemental support system applied to the tree in maintaining it, confirmed that such system may preserve the useful life of the tree by 10, possibly 30 years. (Tr. 251.) Further, the witness did not say that the Corrigans' tree will soon fall, even within 10 years, but that portions of it may fall. Id. However, given the Page -27-
past 10 years where the Corrigans engaged an arborist who regularly visited and treated the tree, who trimmed the tree and, where needed removed portions due to decay or other issues, it was not reasonable to conclude from the totality of the evidence that the tree would have been ignored and would not have received proper care as had been provided and paid for by the Corrigans over the last 10 years. The PUC recited "public safety hazards." Order at 13. Generic public safety hazards exist outside the public utility area yet we do not ban airline travel, possessing knives, or attending baseball games.6 The potential for an event to occur ranges from absolute certainty to infinitesimal. The PUC's policy is not based on the infinitesimal, but on reasonable expectations. In Ohio, during the calendar year 2013, there were 18,340 crashes involving heavy trucks, resulting in 140 deaths and 3,649 injuries.7 On average 50.255 heavy truck crashes will occur every day, yet there has been no hue and cry to or action planned by the PUC to ban heavy trucks from Ohio's highways. Compare this with the statistics from CEI's witnesses when asked to tally the number of power outages or events ever caused by the Corrigans' tree - none to date, (Tr. 201), and "Zero." (Tr. 287-288.) b Cincinnati Baseball Club Co. v. Eno, 112 Ohio St. 175, 180-181, 147 N.E. 86 (1925) (it is common knowledge that in baseball games hard balls are thrown and batted with great swiftness, that they are liable to be thrown or batted outside the lines of the diamond, and that spectators in positions which may be reached by such balls assume the risk thereof). ' 2013 Ohio Traffic Crash Facts, Ohio Department of Public Safety, Table 5.07, Unit Statistics Heavy Truck Crashes, http://www.publicsafety.ohio.gov/links/2013crashfacts.pdf (Accessed 7/23/2014). Page -28-
Driving on Ohio's highways presents an ever-present risk of death or injury exponentially greater than the remotest possibility of any calamity caused by the Corrigans' tree. A wellmaintained automobile driven by a careful driver can unexpectedly veer out of control causing property damage or personal injury. It is unthinkable that automobile ownership would be proscribed under the banner of "public safety hazard." Generic "public safety hazards" exist, but they do not constitute reliable or probative evidence for which its cause and prevention rests with the removal of the Corrigans' tree. An Order whose conclusions rested upon speculation and fearmongering and which applied a standard of infinitesimal possibility lacked support by reliable and probative evidence. The Order was unreasonable, thus unlawful. Page -29-
Conclusion WHEREFORE, for the reasons set forth herein, Mary Martha and Denis Corrigan respectfully submit that their tree was beyond the clearance standards per the PUC's regulations and its overall condition, per the care and maintenance provided the tree by the Corrigans (consistent with the care and maintenance provided the tree by CEI) assured that the tree did not interfere or threaten to interfere with CEI's transmissions lines or with CEI's obligation to provide safe and reliable serivce. Additionally the Corrigans respectfully submit that CEI's policy of removal of all right-of-way vegetation by arbitrarily classifying such vegetation as "incompatible" based on speculating the potential height of a species with out taking into consideration the location, clearance distance, absence of arcing, health of vegetation, past care and maintenance, etc. violated PUC's right-of-way vegetation management policy of vegetation retention where feasible. WHEI2EFORE Mary-Martha and Denis Corrigan respectfully pray that this Court determine that the Order of the Public Utilities Commission authorizing the removal of the Corrigans' tree was unreasonable or unlawful, thus reversing and vacating such the Order, entering an Order sustaining the Corrigans' complaint and for such other appropriate relief as provided for by law. Respectful ester. Pot h Counsel f Appellants Page -30-
CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing ppellants' Merit Brief has been deposited in the U.S. Mail, postage prepaid, this4^)a day of July, 2014, for service upon the following counsel of record: Thomas Gerard Lindgren, Esq. Assistant Attorney General Public Utilities Section 180 East Broad Street, 6th Floor Columbus, OH 43215 Counsel for Appellee Public Utilities Commission of Ohio David A. Kutik, Esq. JONES DAY 901 Lakeside Avenue Cleveland, OH 44114 Counsel for Intervenor The Cleveland Electric Illuminating Company Page -31-
IN THE SUPREME COURT OF OHIO IN THE MATTER OF THE COMPLAINT OF MARY-MARTHA AND DENIS CORRIGAN V. Appellants, THE PUBLIC UTILITIES COMMISSION OF OHIO CASE NO. Appeal from the Public Utilities Commission of Ohio Case No. 09-492-EL-CSS NOTICE OF APPEAL OF MARY-MARTHA AND DENIS CORRIGAN Lester S. Potash (#0011009) 25700 Science Park Drive Beaachwood, OH 44122 Tel.: (216) 771-8400 Fax: (216) 771-8404 E-mail: Isp@potash-law.com Counsel for Appellants Mary-Martha and Denis Corrigan Michael DeWine (#0009181) Ohio Attorney General William L. Wright (#0018010) Section Chief, Public Utilities Section 180 East Broad Street, 6"' Floor Columbus, OH 43215 Tel: (614) 466-4397 Fax: (614) 644-8767 E-mail: william.wright@puc.state.oh.us Counsel for Appellee Public Utilities Commission of Ohio Appendix 001
NOTICE OF APPEAL OF MARY-MARTHA, AND DEN1S CORRIGAN Appellants Mary-Martha and Denis Corrigan hereby give their Notice of Appeal, pursuant to R.C. 4903.11, R.C. 4903.13, and Sup.Ct.R. 10.02, from the Public Utilities Commission's, March 26, 2014, Opinion and Order, (Afkachment A) and its May 14, 2014, Entry of Rehearing (Aftachrnent B), in PUCO Case No. 09-492-EL-CSS. Appellants were and are parties of record in PUCO Case No. 09-492-EL-CSS and timely filed their Application for Rehearing of Appellee's Opinion and Order in accordance with R.C. 4903.10. Appellants' Appiication for Rehearing was denied with respect to the issues on appeal herein by the Appellee's Entry on Rehearing dated May 14, 2014. The Appellee's Opinion and Order and its Entry on Rehearing denying Appe[iants' Complaint against The Cleveland Electric Illuminating Company ("CE9") are unlawful and unreasonable in the following respects: 1. The Opinion and Order is unreasonable or unlawful as the reliabie and probative evidence does not support the finding that trimrriing and prunitig of the Gorri^ans' tme is not a viable option. 2. The Opinion and Order is unreasonable or unlawful in thaif removal of the Corriqans' free contravenes Commission policy to preserve vegetation with removal only when trimming and pruning are not viable options. 3. The Opinion and Order is unreasonable or unlawful as the reiaai~ ie and probative evidence does not support the conclusion that the Corrigans" tree interferes or may interfere with GEi's transmission lines. Page -1- Appendix 002
WHEREFORE, Appellants respectfully submit that Appeilee's March 26, 2014 Opinion and Order and its May 14, 2014 Entry on Rehearing are unlawful and unreasonable and should be reversed with this mafter remanded to Appellee with instructions to grant Rppellentsg Complaint and for the relief sought therein. Respectfully submitted, Appellants a and Oenis Gorrigan Page -2- Appendix 003
CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing Notice of Appeal was served electronically this 16th day of May, 2014,as follows: Chairman of the Public Utilities Commission of Ohio, c!o Docketing Division, via its Docketing Information System; The Public Utilities Commission of Ohio clo William L. Wright, Section Chief, Public l 6tilitias Section, Ohio Attorney Ganaral's Office, at williarn.wright@puc.stata.nh.us, and, The Cleveland Electric Illuminating Company clo Darria M. Dunn, Esq., counsel of record, at cdunn@frstanergycorp.com and Lydia Floyd, Esq. at 1flayd@jonesday.com. r^ IL:e'ster S.!^ fiash Dounsal r Appe![ants Mary- artha and Denis Corrigan Page -3- Appendix 004
CERTIFICATE OF FILING I hereby certify that the Notice of Appeal of Appellants lvlaryr Martha and Denis Corrigan has been filed with the docketing division of the Public Utilities Commission of Ohio in accordance with Sup.Ct.R. 3.11 (A)(2), R.G. 4903.13, and qhic, Adm. Code 4901-1-36, on the 16th, day of May, 2014. 1 i Counsel f^r ppellar^ts ivlary-ivi a and Denis Corrigan Page -4- Appendix 005
^^^ORF, THE PUBLIC UTILITIES COMMISSION OF OHIO In tlte Nlatter of the Complaint of Mary- ) Mart1.~a and. Dennis Corrigan, ) Cc^mplairanN V, Case No. 09-492^EL^^ The Cleveland Electric Ill ting Cognpany, Respondent. The Comrdssion flnd.se ENTRY ON RFHEARING On June 10, 2009, Mary Martha and Derrds Corri^^ (^omplairants) filed a complaint against the Cleveland Electric Illuminatlng Company (CET), concerning CEl's planned removal of a silver naaple tree (the Tree) on the ^ompt^^^^^^ property that fa.ls wiffiin CEI's easernent, (2) CEI fflea^ an answer on July 1, 2009, denyirt^ among other 9-dngs, the material allegations of the complaint. (3) By entry issued Novexnber 5, 2010, the attorney exarniner granted the parties" joint motion for an indefinite continuance until the Commission issued its decision in In tja,^ Complaint of Kurt T^'^mmer/'Winimer Family Trust v. Ohio Edison Gampany, Case No. 09-777-EL-CSS (^mmer). A final appealable order was issued in l^tirrarr^^^ on March 16, 2011, and on Februaxy 29, 2012, the Ohio Supreme Court rendered a decision in that matter m Mmra^r v. Pub. UtzZ. Comm., 131OI io St,3d 283, 2012- O11%o-757a 964 N.E.2d 411, (4) An evidentiary hearing was held in this case on July 25, 2013. (5) On March 26, 2014, the Commission issued its Opinion and Order in this matter, ln the Opinion and. Order, the Commission found that the planned removal of the Tree on the Appendix 006
09-492mEL^CSS e2e ComplairantsR property by Cpl is reasonable under the circur.^^ances presented in this case. (6) R.C. 4903.10 provides that any pam who has entered an appearance in a Commission proceeding may apply for rehearing with respect to any matters deteni-dned by the Corrardssirsn within 30 days after the entry of the order upon the journal of the Conimisslcn. (7) On April 21, 2014, Complainants filed an application for rehearing of the Co `^sion`^ March 26, 2014 OpiTdon and Order. In the memorandum in support of the application for rehearing, Complainants assert the following assignments of error: The Order is unreasonable or unlawful as the reliable and probative evid.ence does not support the finding that irinuna^g and pruning of the Corrigans' Tree is not a viable option. (b) 1'he Order is unreasonable or unlawful in that removal of the ^^^gaiig9 Tree contravenes Comrrdssiesn policy to preserve vegetation wi^.i removal only wber< trirx^^g and pruning are not viable options. The Order is unreasonable or unlawful as the reliable and probative evidence does not support the conclusion that the Corrlgans' Tree interf^^ or may interfere with CEI's trartsmisslan lines. (8) On May 1q 2014, CEI filed a memorandum Contra to the Complainants' application for rehearing. (9) Complairiartts argue that the Conxydssion`s Opinion and Order is tt^^asoriable and contrary to law because the evidence presented at hearing does not support a finding that pruning is not a viable option or that the Tree has the potential to interfere with. CEI's transn-dsslort lines. purtl7er, Complainants argue that removal of the Tree contravenes Conu-ni..^sion policy of removing vegetation ori.y when prurdng is not a viable optim, Specifically, the Complainants ^ssert that the evidence presented at hearing ^onflrined that the dangers of sagging, arcing, or rapid growth were not the driving forces in 2W0 Appendix 007
09-492mELaCSS..3 when CEI replaced its policy of vegetation management with one of vegetation removal. Complair=ts, argue that, havi-ng received proper maintenance and care, the Tree's decades-1ong history of non-interference with CEI s transmission lines cannot be superseded by CEI s declaration that the Tree suddead^ has become a^ompatibl^ with the transmission lines. Moreover, Complainants note that the Tree stands outside any recognized zone of danger from sag ' F arcing, or rapid grawth, Thus, CEZ's de1aration that the Tree is incompatible with its transmission lines is not a reasonable basis to cause severe and adverse cora,ssequences to Complairmits and their property by removing the Tree. Complainants argue that, in light of the care the Tree has received from Complainants' arborist over the 1ast ten years, it is not reasonable to conclude from the totality of the evidence that the Tree will be ignored and will not receive proper care in the future. Cor^.^plainaa'.ts further argue that the prevention of generic public safety hazards with regard to the transmission lines, whi.ch have the remotest possibility of being caused by Comp1^inatits' Tree, does not constitute probative evidence for the removal of the Tree. (10) In addition, Complainants assert that the ^^^^siores policy of approving the removal of property ^^ezs vegetation only when prniing is not a viable option is violated by CEI's program of virtuaby removing all vegetation. Complainants argue that, to overcome the Corrmissgon`s policy of vegetation preservation requires CEI to present probative evidence that Complainants cannot properly attend to their Tree. Compl"nts argue that, as Cial has presented no such probative evidence, the Commi.ssior."s policy directs that the Tree remain standing. Further, because the Order omitted any discussion or analysis of the Coznmission's policy of vegetation retention and of vegetation removal only where prurdng is impracticable, and because the Order failed to analyze the past ten years of the Complainants' maintenance of their Tree in relation to the Cozrn-dssion6s policy of vegetation retention, the Order is unreasonable and unlawful. (11) CEI argues that the Commission's March 26, 2014 Opinion and Order correctly found that CEI's planned removal of the Tree is reasonable. CEI points out that the Commission found that CEI's plan to remove the Tree is consistent with its vegetation management plan, which requires removal of vegetation that Appendix 008
09-492mEL,-CSS -4- has the potential to interfere with a transmission Iia.e. CEI fnther points out that, as established, by the evidence, the Tree could potentially interfere with the transmission line by falling or growing into the line and that, given the safety hazards the Tree could cause if left standin& and the extensive decay in the Tree, the Commission d^em-dned that pruning the Tree is not a viable op#ion. Furthermore, the ^onu-nission found that it would be inappropriate for a utility to allow customers to manage vegetatiori located near power lines. (12) CEI states that Complainants repeat the same arguments that the Cr^nunission has already fully considered and rejected. With regard to thds contention, CEI notes ^ompi ts continuing argument ffiat the hdstory of the Tree's ^^^existen^e with the transmission line shows that the Tree should not be removed. However, the Commission"s Order correctly recogrdzes ffiat the Tree has matured to where it now is extensively decayed, so that the Tree or parts of the Tree will UeIy fall in the near future. CEI states that Complainants also continue to make allegations that either ignore or mischaracterize evidence demoxsttrating that the Tree poses a hazard both to CEfs transiriis51on lines and to pubik safety, tlaf pruning will not remove these hazards, and that the c^^y way to prevent the Tree from interfering with the line is to remove the Tree. CEI states that the ^^mniissican shota.ld reject all of Complainan& assignments of error, deny the appl^cation for rehearing, and arcaw CEi to move forward with the removal of the Tree. (11) In considering the Complainants' argummts, the Commission finds that it considered all of the evidence presented in this case in its i-nitia.l. Opinion and Order. Moreover, Complainants fail to raise any new arguments for the Cornmissior^s consideration in their application for re.i^earing. In reexamining the evidence presented, the Commission affirms its prior conclusion that the planned removal of the Tree on the Complainants' property by CEI is reasonable under the ^^^um-stances presented in this case. Accordingly, the ^onm-kassion finds that CompIainants' application for rehearing should. be denied_ It is, therefore, Appendix 009
09-492^^L-CSS..,^^ ^^^EREi7, That Complainants' application for rehearing be denied. It is, further, ^RDEREDs That a copy of this Entry on Rehearing be served upon all ^a-rties of record, THE PUBLIC UTILITIES ^OMML%ION OF OHIO Thomas W. Joimonr Chairnian, Steven D. Lesser Lynn Slaby M. Beth Trombold Asim Z. Haque KKS/vrm Entered `zn. the jc^urnal.^ 1-4-M^ Barcv F. McNeal d Secretary Appendix 010
BEFORE THE PUBLIC UTILITIES COMMISSION OF OHIO Mary-Martha and Dennis Corrigan, Complainant, V. Cleveland Electric Illuminating Company, Respondent. } } / ^k J ^ ^ ^} ) Case No. 09-492--EL--CSS OPINION AND ORDER The Commission, considering the complaint filed by Mary-Martha and I?erriis C rrigan and the evidence adn-itted at the hearing, hereby issues its Opinion and Order. APPEARANCES: Lester S. Potash, 25700 Science Park Drive, Suite 270, Beachwood, Ohio 44122, on behalf of complainants Mary4Ad+Iartha and Dennis Corrigan. Jories Day, by Lydia M. Floyd, North Point, 901 Lakeside Avenue, Cleveland, Ohio 44114, and Carrie M. Dunn, 76 South Main Street, Akron, Ohio 44308, on behalf of the C"levela-nd Electric Illuminating Company. OI'INIC3N; I. HISTORY OF THE PROCEEDINGS On June 10, 2009, Mary Martha and Denrais Corrigan (Corrigans or Complainants) filed a complaint against the Cleveland Electric Iliun-dnating Company (CEI or Company), concerriing CEI's planned removal of a silver maple tree (the Tree) on the Corra^ans' property that falls within CEI's easement. Complainants allege that CEI's decision to remove the Tree, and CEI's impleznentati.on of its vegetation managen-.ent policy, as well as the policy itself, violate Ohio Adm.Code 4901:1-10-27 and that the Corr.igansp maintenance of the Tree comports with the Comrnission"s right-of way vegetation control. CEI filed an answer on July 1, 2009, denying, among other thii-tgs, the material allegations of the complaint. Appendix 011
09-492-EL-CS5-2- A settlement conference was held on August 13, 2009, and subsequent negotiations between the parties occurred; however, the parties were unable to resolve the matter. By entry issued November 5, 2010, the attorrgey exaniirter granted the parties' joint motion for an indefiriite continuance until the Corrunissicara issued its decision in In the Complaint of Kurt Wimaner,ammer Family Trust v. Ohio Edison Company, Case No, 09a777-EI,,a^SȘ (Wimmer). A f inal appealable order was issued in Wini:xter on March 16, 2011, and on February 29, 2 112, the Ohio Supreme Co-urfi rendered a decision in that matter in Wimmer v. Pub. Util. Comm., 131 Ohio St3d 283, 2012-OHo-757, 964 N.lJ.2d 411. By entry issued. November 1, 2012, a procedural schedule was establi..^hed in this case, and, after several continuances at the request of the parties, the case was set for hearing on July 25, 2013. An evid.entiary hearing was held as scheduled on July 25, 2013. The Corrigans filed a post-hearing brief on September 13, 2013, while CEI filed its post-hearing brief on September 16, 2013. Both parties filed post-hearing reply briefs on September 30, 2013, II. APPLICABLE LAW CEI is a public utility by virtue of R.C. 4905.02 and an electric light company as defined by R.C. 4905.03(A)(3). CEI is, therefore, subject to the jurisdiction of the Corrarrdssion pursuant to R.C. 4905.04 and R.C. 4905.05. R.C. 4905.22 requires, in part, that a public utility furnaisl ^ necessary and adequate service and facilities. R.C. 4905.26 requires that the Commission set for hearing ^complaia.t against a public utility whenever reasonable grounds appear that any regulation, measurement, or practice affecting or relating to any service furri.slted is unjust or urreasonable. In complaint proceedings, the burden of proof lies with the complainant. Grossman v. Pub. Util. Comm., 5 Ohio St.2d 189, 214 N.E.2d. 666 (1966). Therefore, it is the responsibility of a coinplainant to present evidence in support of the allegations made in a complaint. III. BACKGROUND The sole issue in dispute is whether CEI's planned removal the Tree, which is located within CEI's easement on the Corrigans' property, is reasonable. C1J1 argues that the Tree is decayed and has the potential to interfere with its transmission lines that run across the Corrigans' backyard. The Corrigans, who own the Tree, maintain that they have the right to prune and carefaar the Tree and that the Tree, if properly cared for, will not threaten CEI's transmission lines in any way. Appendix 0 12
09492-EL-CSS -3m In July 2004, CEI gave notice to the Corrigans that the Tree would be cut down in order to protect the Company's tras-lsmission lines. The Corrigans obtained an injuction against removaj. of the Tree in Common Pleas Court. The injunction, after being upheld in the Court of Appeals, was appealed to the Ohio Supreme Caurt. In Corrr^an v. IIIum. Go.,122 Ohio 5t3d 265, 2009-Ohio-2524, 910 N.E.2d 1009, T 17-19, the Court held that CEI's easement is valid, that the Tree is within the easement, and that CEI's ea,4ernent perrrlits removal of any tree that threatens its transniission lines. The Court, however, ruied that the Commission has exclusive jurisdiction in the matter. The case then was remanded for the ^onunission's detern-r.ination of the reasonableness of CEI's planned removal the Tree. M SUMMARY OF THE TESTIMONY Testimcsp r^^m-martha Ccsrrig^!^ Mrs. Corrigan testified that the Tree was present when the Corrigans moved into their residence in 1975, and was maintained by CEI up until 2003. She stated that CEI would provide routine maintenance and pruning of the Tree every IouT to five years, as well as other trees located in the Corrigans' neighborhood. Mrs. Corrigan ir^^cated that CEI`s periodic maintenance of the Tree was in accordance with an easement that CEI holds through. part of the Corrigans' property. She acknowledged that the tree in her backyard faiis within CEI's easement, but points out that the Tree is on the edge of CEI'^ easement that is closest to the Coarigans residence. Further, Mrs. Corrigan test%iied that, between 1975 a-nd. 2003, she and her husband received no notices from CEI that the Tree interfered with the Company's transmission lines (Tr. at 9-14.) Mrs. Corrigan testified that a letter was sent to Mr. Corrigan on July 1, 2004, indicating that the tree located within CEI's easement represented an incompatible tree species, The letter stated that CEI was granted the right to remove trees in the right--of-ivay in 1926, and that an inspection of the Tree, which is in the ra.ght-of-wav, revealed that the Tree could cause reliability and safety hazards uriess it is removed. Subsequently, the Corrigans, disputing that the Tree poses a threat to CEI's transmission lines, obtained an injunction prohibiting CEI from removing the Tree from the rightmof-way. (Corrigan Eac.1; Tr, at 14P1.7.) Mrs. Corrigan testified that, aftex obtaining the inju-nction, CEI stopped providing maintenance for the Tree, and the Corrigans have been providing that maintenance since 2004 through the Forest City Tree Protection Company. Mrs. Corrigan testified that, between 2004 and the present, she and her husband received no notices from CEI that the Tree interfered with the CompanyPs transmission lines. Appendix 0 13
49492AEL-C^S -4m She stated. that the Tree continues to be healthy and strong as a result of the C rri^ans' maintenance and that she has received no indication from CEI that the Tree remains a threat to the tramrrli.ssion lines. (Corrigan Ex. 2; Tr. at 17-20.) Mrs. Corrigan testified that the Common Pleas Court issued an injunction preventing the Tree from being cut, and the Court of Appeals ruled in the Corrigans' favor. She stated that the Ohio Supreme Court then ruled that the Common Pleas Court and Court of Appeals did not have jurisdiction, only the Corrunissgon, but they did riot rule on the merits of the case. Mrs. Corrigan noted that she is fighting for the Tree because it is a part of the Corrigam' property and a value to their home. She stated that the Tree is healthy and to cut it down would be unnecessary. (Tr. at 27-28, 30.) Mrs. Corrigan testified that she is not an arborist and has no education in forestry or arboriculture, nor does she have any education, training, or experience in pruning the `f'xee or deternisning the health of the Tree. Furt:her, according to her testimony, 14'lrs. Corrigan does not know the height of the Tree, has no knowledge regarding electric transn-tissisan lines, and cannot speak with any authoritv as to what the industry standard is for maintaining trees around electric lines. She testified that her rspgr<isan as to the heai.th of the Tree is based her conclusion that because the Tree is growing foliage, it must being healthy, a-nd because other people have told her they thought the Tree is healthy. Further, Mrs. Corrigan testified that 2012, 2011, and 2009 invoices from the Forest City Tree Protection Company listed maintenance work on the Tree, including removal of decayed and dead wood, removal of new growth on the side of the Tree facing the transmission lines, and reduction in the height of the Tree, (Tr. at 30, 32-33, 36-39.) Testim.oni ^^f Thomas Neff Thomas J. Neff, Jr., a surveyor with the engineering and surveying firm of Neff & Associates, testified in support of CEf. Mr. Neff testified that he performed a site survey of the Corrfgans" property on March 19, 2013. Mr. Neff stated that he used his surveying equipment to plot the location of the tree, tree branches, and electric lines and then uploaded the coordinates into a data collection system. software, which was used to generate the survey (Co. Ex. 4, Att. TN-1). He raoted that CEI provided him with a copy of the easement from the Cuyahoga County Recorder's Office and that the "212OF" lasted on the survey depicts the sag in. the line at that ternperat ure. Mr. Neff also stated that the cross-section portion of the survey, which reflects curved dashed lines from the top of the tree to the ground, reflects the path of the tree were it to fall towards the electric line, assurning the pivot point of the fall is at ground level. Further, this line was genexated by determining the radius of the T'ree's canopy, based on its h.eight. (Co. Ex. 4 at 5-8.) Appendix 014
09-492-EL-^CSS -5e On further exaznination, Mr. Neff testified that the horizontal distance from the Tree to the tx.ansniission lines was rneasured when he conducted his survey, but is not depicted in the survey report (Co. Ex. 4, Att. TN-1). Mr. Neff stated that he would have to refer to his field notes for the exact answer, but that the distance is approxirnateiy 23 feet. (Tr. at 83.) Testimony of David Koz,^ David Kozy, CEI's general manager, Tramnii.ssion Engineering, testified in support of the Company's position in the case. Mr. Kozy first noted the serious consequences of vegetation coming into contact with electric lines and the line conditions know-n as "arcing" and "saggingd'. Mr. Kozy then testified that electricity can a-rc or jump from the 138kV transrrii.ssion line as much as four feet and that wind may blow a transmission line as much as 7.3 feet to the right or Ieft. Mr. Kozy stated that, based on computer simulatiom, and depending on such factors as temperature, wind, and line load, the sag or the dip further toward the graund of 138kV t^ansrrdssiore line can vary as much as nine feet in a single day, 12 feet from season to season, and 27 feet at the line's maximum operating temperature. Further, the hotter an electric lin.e, the lower it tends to sag. (Co. Ex. 5 at 5-7.) Mr. Kozy testified that, with regard to trees a.rad. 138 kv transmission lines, the National Electrical Safety Code requires a niinimtzm horizontal clearance of 9.6 feet and a minimum vertical clearance of 10.1 feet. Mr. Kozy testified that, based on his review of the testimony filed by CEf witnesses Spach and Laverne, his personal observations, and his review of Neff & Asscaciates' survey, he believes that the Tree may interfere, or threaten to interfere with CEI's transmission line, through direct contact, arcing or both. Mr. Kozy stated that, given that the Tree is 25.6 feet high, higher than the lower conductor of the line, if the Tree were to fall in the direction of the line, it would certainly contact the conductor and cause a fault in the line. (Co. Ex. 5 at 7-8.) Mr. Kozy c rlfirmed that, between his first and last visits to the Corrigans' property, which covered a five or six year spa-n of time, the locations of the Tree and the tx ansrriission lines remained the same. Further, the crown of the Tree on the side facing the transmission lines has been cut. Mr. Kozy noted that no part of the Tree is within four feet of the lines. However, while the Tree is not ditectly undemeath the lines, the Tree's position is such that if it falls toward the lines, d.u.e to the conductor location and its sag, it will contact the line creating an outage. Mr. Kozy also con.firmed that, according to the National Electric Safety Code, the xninimal horizontal clearance between a tree and the transmission lines is 9a6 feet. He stated that, at no time, did he observe the Tree encroaching within 9.6 feet of the lines. (Tr. at 91-108.) Appendix 0 15
09-492-:IsL-CSS..6o Y'estimony of peb^^^^ Spach Rebecca Spaeh, manager of transmission vegetation management and a certified arborist for FirstEnergy Service Company (FirstEnergy), which pxovides services to CEI, including transmission vegetation management, testified in support of the company. She testified that FirstEnergy's management of vegetation in the corridor m the axeas beneath and around the li-nes - is carried out accordilag to the company's current vegetation m'anagement plan (i''ian.) and its contractor specifications (Specifications). Ms. Spach testifzed that the Plan and Specifications generally prescribe a five-year maintenance cycle, duxing which FirstEnergy inspects and controls all incompatible vegetation (vegetation that will grow tall enough to interfere with the lines) within its transmission corridor. She stated that the width of the transn-dssion corridor varies according to size of the easement obtained by the utility and the voltage of the transmission lines. Ms. Spach testified that the Plan provides for the following: " 7'he clearing of vegetation located in a specified corridor is performed in accordance with pre-established schedules, or as required to ensure line reliability, maintain access, make repairs, or restore service," However, vegetation does not have to be directly underneath a transmission line to be designated for removal, Ms. Spach stated that any vegetation that is located on a transmission corridor and has the potential to interfere with the safe and efficient operation of the transmission system should be removed. As a result, any tree species that can grow tall enough to interfere wzth a transn-dssion line by either growing into the line or by falling into the line is removed. Ms. Spach stated that, in addition, any tree that is dead or defective that poses a threat to the line must be removed. She noted that pruning may occur in certain Izrrdted situations, primarily when the utility does not have an easement granting removal rights. In such cases, vegetation is pruned 25 feet or greater from the conductor of a 138 KV transn-dssion line. (Co. Ex. 6 at 4-8.) Ms. Spach testified that, if vegetatio-n will grow tall ^^ough to intetfere with the lines, then the oriy certain way to avoid future interference is to remove it. She stated that g-rowth rates of trees are influenced by many variables and that it is difficult to estimate the amount a tree can gz aw over time. However, FirstEnergy's program does not require the clear cutting of all vegetation inside a trarsrrission corridor. Ms. Spach stated that only vegetation that has the potential to interfere with a transn-dssion line must be removed from transmission ^orrid ars. Compatible vegetation, which is vegetation that does not have the potential to grow tall enough to interfere with the lines or with access for making repairs and restoring service, does not need to be removed. (Co. Ex. 6 at 8-9.) Appendix 016
09m492pELmCSS _7a Ms. Spach testified that the species of the Tree is silver maple and that silver maples can grow to a height of 80 feet, with an average growth rate of three to seven feet per year. She noted that the Tree is taller than the rrziddle and lower wires and has grown tall enough to interfere with the transmission lines. In addition, one of the la-rger branches on the Tree has a large amount of decay at its base and if tms branch faus towards the line, it would strike the lower wire. Ms. Spach testified that the Tree has multiple structural defects, and is structurally weak because of decay. She noted that, given the amount of decay and other structural defects, the potential for the Tree to fail is ix-acreased. Further, the Tree is thus a defective tree that poses a threat to the transmission lines, and, it needs to be removed as soon as possible. (Co. Ex. 6 at 12--13.) With r^gard to whether the Tree ccruld be pruned instead of removed, Ms. Spach testified that pruning requires guesswork and that the ordy certain way to avoid interference with the transmission line is to remove the Tree. She stated that, because of the fast growth rate and potential height of the Tree, it is difficult to estimate how much and how often pruning must be done to ensure that there will be no contact between the Tree and conductors. I-n addition, given that there are over 6,700 miles of transmission lines to maintain in Ohio (14,000 company-wi.de), it is unreasonable to require FirstEnergy to prune the Tree, maintain a constant vigil over it, and expect customers to bear the costs. (Co. Ex. 6 at 13m14.) Ms. Spach testified that it is not reasonable to permit Complainants to assume responsibility for the maintenance of vegetation on their property. She stated that CEI and FirstEnergy are responsible for the transn-dssion lines and that, if Complainants were allowed to maintain vegetation, CEI and FirstEnergy would have no control over vegetation management in the transrrdssxorl corridor, and other customers n-dglat want to do the same as the Corrigans. Ms. Spach testified that, given the implications of tree/line contacts and the expertise required to avoid them, tl-ds function cannot be delegated to customers. (Co. Ex. 6 at 14.) Ms. Spach testified that the Tree interferes with the transrnission lines beca.use it is a silver maple tree. She explained that the Tree is located on the transmission easement, and it has the propensity to grow into the transrrilssion line. Also, due to the condition of the Tree, the arnount of decay that is in it, a bran.ch could break off, or the Tree could fall over. Ms. Spach stated that the Tree, b;r the defiriition in FirstEnergy's Plan, interferes with the transmission lines at the present time. With r^gard to the health of the Tree, Ms. Spach noted that the Tree has a predominant stem which includes bark that`s been pruned numerous times, and it has sucker growth, which means that the Tree, as a result of pruning, has grown back rapidly. Further, there is evidence of decay pockets throughout the Tree, which is taller than the transmission line, and branches potentially ^ould break off and strike the line if the Tree were to fall towards the line. 'Ms. Spach stated txa.at the Tree's condition existed irr. Appendix 017
09-492-EL-CSS o8m 2{109, and it has continued to decline to toda;r, She stated that although the Tree is not dying, it is slowly declining. However, the Tr^e was growing in 2009, it has continued to grow, and it continues to sprout and bear leaves. (That 134, 357, 384,) Testirno^.^ of Robert J. Laverne Robert J. Laverne, manager of education and training for the Davy Tree Expert Company and a cegtified arborist, testified in support of CEI. Mr. ^^veme testified that, although the Tree is alive, it has multiple structural defects that increase the likelihood of failure of one or more of the branches or one or both of the co-dominant sterns. These defects are caused by the Tree's co-dominant stems with included bark (which prevents strong attachment between the two stems), decay throughout the Tree's crown, and weakly attached branches with associated decay. Mr. Laveme noted that there are multiple pockets of decay. He stated that below a cut where a large branch was ^ernoved, there is a support device that attaches the two main stear.s of the Tree and that, although this support device offers a xrinimal amount of increased strength, any additional strengtb p^ovid.ed by the support device will go away as the decay from the cut spreads. (Co. Ex. 7 at 4-6.) Mr. ^^^eme testified that the Tree, or parts of it, may interfere or th^eaten to interfere with the trammission lines that are located to the west of the Tree. He noted that the eastward orientation of the unbalanced crown and the north-soutb orientation of the co-dominant stems reduces the likelib.ood that, if the Tree fails from the trunk or roots, it will come in contact with the lines. However, this does not completely eliminate the risk that parts of the Tree could come in contact with the lines. Mr. Laverne testified that, given sufficient force from strong winds, the potential exists for the Tree to fail f^om the trunk or roots and fall toward the lines. Also, %phen individual branches within the crown of the Tree are considered, there is an increased likelihood of failure toward the utility lines, particularly with respect to those branches with interaial d^ca^y. (Co. Ex. 7 at 8.) Mr. Laverne testified that przxdng is not a viable option to remove all parts of the Tree that have the potential to interfere with the transmission lines. He stated that in order to eliminate the possibility of interference with the transmission lines, all of the branches that are tall enough to fall into the lines would need to be removed. However, if this is done, the Tree will either respond, as it has in the past, by quickly growing sucker branches that will occupy the same space in a relatively short amount of time, or so much leaf area may be removed that the Tree will be unable to provide itself with sufficient energy with which to continue living. In addition, the current rate at which internal decay is advancing also precludes pruning as a viable option to elhrdnate the possibility that the Tree may interfere wath the transmission lines. Mr. Laveme testified that the rate of decay is likely beginning to outpace the Tree's ability Appetldix 018
09-492-EL-CSS -9- to compartmentalize the decay; as a result, the Iiicelihood of the Tree's failure is increasing. (Co. Ex. 7 at 8-9.) Mr. I..a^eme testified that the Tree is smaller today than it was in 2009. Further, the Tree is in a state of decline because of the amount of foliage that has been rernoved., which limits the Tree's ability to engage in photosynthesis. He noted that the crown of the Tree is imbalanced, with the,portiesn of the Tree faci-ng the transardssio-n lines being pretty xnuch removed and with the anajotity of the Tree facing the ^^rrigans house. Further, he noted that the Forest City Tree Protection Company was asked to remove a number of the large br^a-ncb.es and to reduce the size of the tree crown. Nft. Laverne testified that, when he observed the Tree in May 2013, the majority of the crown that remains did support live foliage, although there were a number dead branches that did not support live foliage. (Tr. at 222-224.) Mr. Laveme testified that he did not take a core sample of the Tree and. ^^an^ine the growth rings of the trunk. However, from his knowledge of silver maple trees in general and the rate at which they grow, and the size of this Tree, he estirn.ated it to be between 50 and 65 years old. He stated that silver maples can live to be hundreds of years old. However, the Tree repeatedly was subjected to the large scale removal of foliage, and those pruning sgtes became established with decay. So, the Tree is closer to the end of its life than it would be if it had not been subjected to tl-ds amount of pruning. (Tr. at 225-226.) W. Laverne testified that once decay is established in wood, there is no practical way to remove it. So, decay in wood cannot be cured by fertilization, and no maintenance procedure can be used to limit or arrest the spread of decay. Mr. Laverne stated that there are methods that can be employed to assist the Tree in compartmentalizing the decay. However, trees cannot cure or push out decay. Once the wood is decayed, it will always be decayed. He noted that some tree species are able to buiid chemical and physical walls within the new wood that is produced, which acts as a barrier to the spread of decay and that some species are better than others at doing so. Mr. Laverne stated that silver maples are not particularly good at ^^^partmentalizing the spread of decay. So, what typically happens is that decay spreads most rapidly in the same direction as the tubes that conduct water throughout a tree. Mr. Laverne stated that it is not u^contrnon to see a tree with an extensive column of decay in the trunk and branches, and still supporting a full crown of green foliage. (Tr. at 227-229.) Mr. Uverne testified that he used amethod. called Asounding" to exan-ine the Tree. With this method, an arborist taps on the outside of the wood with a mallet and listens to any change in the pitch of the taps. Basically, if an area is encountered where the pitch of the tap sounds like rapping on a watermelon, then that is an indicator of Appendix 0 19
09-492-EL-CSS -10- internal decay. Mr. Laverne stated that, both from a sound standpoint, sounding the trun.lc of the Tree, as well as visually observing decay that is present on the base of the older pruning cuts, it appears that the Tree was able to produce reaction wood at a faster rate than it has done with more recent cuts. (Tr. at 230-231.) With regard to the rate of the advancement of decay in the Tree, Mr. Laveme testified that, as the amount of leaf a-rea in the tree crown was reduced due to previous pruning operations, and because of branches dying and deadwood being removed, the Tree has a red.uced capacity to conduct photosynthesis. He stated that the Tree is no longer able to conduct photosynthesis as it used to when it bad a full crown and that, when the photosynthesis rate is diminished, the capacity of the Tree to compartmentalize decay is also reduced. Therefore, the Tree has less energy to grow ^ew wood cells in an attempt to reduce the spread of decay. Mr. Laverne testified that he could state with a high degree of certainty that that rate of spread of decay in the Tree is increasing. (Tr. at 232-233.) Mr. Laverne testified that the Tree continues to grow as decay continues to spread and, at some point, the decay will exceed the strength of the wood, and the branch, trunk, or roots will fail. So, the Tree may be extensively filled with decay and vet still support living foliage. Mr. Laverne testified that it is not unconunon to see trees with extensive decay that fall over, and as they fall over, they have full crowm of green foliage. He stated that he exam.i.ned the root collar of the Tree, which is the swell at the base of the trunk as the roots meet the trunk, and the roots that extend just beyond the trunk of the tree. He noted that, on the western side of the Tree, there is evidence of some root decay that may have become established because of the lawn being mowed over the top of the roots. Mr. Laverne explained that silver m. aples typically have a shallow root system, and if the grass is cut in the area, the lawnmo^^^ will frequently clip the top of the roots; and when that happens, decay becomes establisb.ed.. (Tr. at 236-237.) Mr. L.^^eme testified that, typically, it is not just gravity that causes a tree to fail. He noted that, more often than not, a tree fails when there is a cornbination of lost strength through advancing decay; and an extemal force, wmch is frequently wind. So, as the decay is spreading in the Tree, over time, it will take less and less external force to cause the Tree, otparts of the Tree, to fail. Mr. La a^^^e noted that one tall b^anch in, particular, on western side of the Tree, is growing straight up, is weakly attached to one of the trunks, and is decayed at its base, He testified that a 20-mi1eperab.csur wind could cause the branch to fail and, if it does fail, it will reach the wires. Moreover, he testified that the two trunks of the Tree, which have a weak ba-rk attachment between them, might actually separate on a windy day, and the inberent weakness of the bark attachment between the trunks will cause one or both of the trunks to fail. (Tr. at 238-239, 242-244, 247.) Appendix 020
09-492-EL-CSS m11_ Mr_ Laverne testified that he could say, wgth a re1ativeiy I-dgh degree of certainty that portions of the Tree will fail witllin the next ten years and that, witlai.n ten years, the supplemental support system will no longer be attached to the Tree in a mea-ningfazi way bb^cauge of decay that is present. Further, he noted that the Tree is shorter than it was in 2009, because of the work done by the Forest City Tree Company to reduce the ca-nopy height. However, the Tree is still taller than the lowest transmission line, and the Tree's height will be back to its 2009 dimersiom if water sprouts (branches that grow very fast and produce leaves at a rapid rate) re-grow on the Tree in their former positiom. Mr. Laveme testified that, if the Tree is managed in the same way that it has been managed in the past, one of two things will happen. If crown reduction is repeated, especially if the branches lower than the lowest line are removed, there will be very little leaf area left, and the tree will either re-grow water sprouts, and those will grow straight up in an attempt to resume photosynthesis, or the Tree will run out of energy reserves and die. ('I'r, at 251, 257-260.) Testirrtony of StMhen Cieslemvicz Stephen Cieslewicz, a certified utility axbarist and president and chief consultant at CN Utility Consulting (CNUC), which provides consulting services to utility companies, regulators, and various service providers in the utility vegetation management (itvm) industry, testified in support of CEI. Mr. Cieslewicz explained tl iatf as a result of his experience in the UVM industry and the studies performed by CNUC, he is considered an expert in the field of UVM. Further, Mr. CiesIewicz noted that, he was one of the two principal UVM investigators of the 2003 Northeast blackout for the Federal Energy Regulatory C rrunissior^ (FERC) in support of the joint US/Canada Task Force that was convened to investigate the blackout and make r^^omrnendati ns based on the investigation. (Co. Ex, 8 at 1-4.) Mr. Cieslewicz testified that, as part of the blackout investigation, he was retained by FERC to investigate FirstEnergy's UVM practices. He testified that FirstEnergy had adequate UVM programs in place that reasonably satisfied, the industry and regulatory requirements in place at that time. He stated that FirstEnergy's current LfVM program, whch is sbgrdfi^antly more robust now than it was prior to August 2043, includes full enforcement of easement rights, and aerial and foot patrols of transmission lines. He noted that FirstEnergy's current ITVM program contains numerous "best in class,9f attributes and that their current practices appear to be consistent with what he would expect to see in such altvm prograrn, (Co. Ex. 8 at 16-20.) Mr. Czesiewicz testified that the NERC Standard FACp003 Technical Reference, wbi.c.h is the vegetatim management standard that has to be adhered to by utilities Appendix 021
09492-EL-CSS m12w ac^oss North. America, sets foxtl-i categories of the types of outages that can occur hecause of vegetation interfering with t^ansrrussican lines. Mr. Cieslewicz explained that, under the FACm003 standards, if the Tree fell over onto the lines, that would be categorized as a category 2 reporting outage. If the Tree was left unmanaged and ^e^w into the lines, that would be a category 1, outage, and if the Tree was located outside of FirstEnergy's easement and fell into the lines, that would be considered a category 3 outage. Mr. Cieslewicz testified that had the Tree not been routinely pruned back within the required clearances, it could have caused a growth-related outage, which would be a category 1outage. However, it could also fall into the lffies, which would be a category 2 outage. (Tr. at 276, 278, 290.) With regard to people being electrocuted or seriously injured while climbing trees adjacent to energized lines, Mr. Cieslewicz testyfied that every case he has been involved with in court, after a fatality, fire, or other significant event, fits the same model as the Tree. Mr. Cieslewicz testified that, while he has no informa#ion that there was a fatality related to the Tree, if a serious incident had happened, the Tree would have been removed by now. Further, he stated that it is not a good idea to wait for something to happen. ( I'r, at 317m31$.) W. DISCUSSION The record i-n this case reveals that CEI's witnesses presented credible, expert testimony with respect to removal of the Tree. Three of CEI's witnesses are certified arborists. They testified that the Tree is decayed at many points witl-lin its structure and that, because of this decay, the Tree, or parts of it, are destined to fail and fall into the transn-dssicsn lines. More specifically, CEI witness Laverne testified that the Tree, while still supporting living foliage, is extensively filled with decay. Mr. Laverne noted that there is a hfgh. degree of certainty that portions of the Tree will fail within the next ten years and fall into the transn-ii.ssion lines. He further noted that the support cable that is attached between the two trunks of the Tree will no longer be effective within ten years. CEI witnesses Kozy, Spach, and ^^ern.e all emphasized that the Tree is decayed and needs to be removed in order to preserve the integrity of the transmission lines from the damaging effects that contact with the Tree might cause (Co. Ex. 5 at 7-86 Co. Ex. 6 at 12-13p Tr. at 134, 157; Co. Ex. 7 at 4-6, 8-9a Tr, at 236-237, 244). CE1 witnesses Cieslewicz also stressed the public safety aspects of a tree con-dng into contact with an electric line, and indicated that it would not be prudent to wait for that to happen (Tr. at 318). CEI witness Spach further testified that prevailing industry practices specify removal of the Tree because it is considered incompatible vegetation, i.e., it has the potential to grow high enough to interfere with the transn-a.a.ssion lines. Ms. Spach testified that the species of the Tree is incompatible vegetation with respect to its Appendix 022
09492-]EI.-CSS -13- growth in CEI's easement because it has a mature height of 80 feet and a growth rate of three to seven feet per year. She observed the Tree and reported that it is taller than the xx-,ddd.le and 1owe-r transrnissior} lines and has and has grown tall enough to interfere with those lines. (Co. Ex, 6 at 12-73.) Mxs. Corrigan appeared as the Corrigans' sole witness at hearing. She testified that the Corrigans want to preserve the Tree because it is a part of their property and a value to their home (Tr. at 30). Mrs. Corrigan testified that the Tree is healthy because it is growing foliage and because other people have told her that the Tree is healthy (Ti. at 35). With respect to Mrs. Cor.rigai's testimony, the Commission observes that Mrs. Corrigan is not a ^ertified arbarist (Tr. at 30-31) and that her opinions about the Tree seem to be based on her personal beliefs and what other people have told her. The issues of whether the Tree is located in CEI's easement, whether CEI has an easeme,rit over the Corrigans' property, and whether the company 1ad the right to remove trees in the easement that threaten its transmission lines have already been deterrrined in the ^firmative by the Court. Conigan at 122 Ohio St.3d 265, 2009-Ohio- 2 s24q 910 N.E.2d 1009, 17-19. Those issues are thus not for ou-r consideration in this proceeding. Our sole charge in this matter is to determine wlgeth.er CEI's planned removal of the Tree is reasonable. We note that under Ohio Adm.Code 4901.1-10p27, CEI must submit written programs to the Commission for the inspection, mainteriance, repair, and replacement of its transmission and distribution circuits and equipment and that such programs include right-of-way vegetation coaatrol. Once subrriitted.a if not acted upon by the Conunission within a specffied time, the filing is d.eemed approved. Such written prograrns (the Plan and Specifications previously noted in CEI witness 5pach.`s testimony, Co. Ex. 6 at 4-5, Att. RS-1 and RS-2), originally filed in January 2001, and most recently amended in Apral 2010, were submitted by CEI for the C rrunission`s review. The Commission did not act upon the information contained in the filings. Therefore, CEI's April 2010 written programs, wl-ii.ch include vegetat^on control measures, were approved in May 2010. We can find nothing about CEI's planned removal of the Tree that conflicts with its right-of-way vegetation control measures on file at the Commission. The evidence of record reveals that the Tree is decayed extensively and that parts of it are almost certain to fail in the not-toodistant future (Tr. at 251). Moreover, continued pruning will cause the Tree to responci by either re-growing, branches at a xapid. rate back into the areas that have been pfuraed, or if pruning is done enough times, the Tree will run out of energy reserves and die (Co. Ex. 7 at 8-9; Tr. at 259-260). Therefore, due to the condition of the Tree, the Conimissiora finds that pruz-dng is not practicable. Further, CEI witnesses Kozy and. Cieslewicz presented testimony as to the public safety hazards - including power outages, possible fatalities, and fire - associated with the Tree's continued existence near CEI's transmission lines (Co. Ex. 5 at 5, 8; Tr. at 100, 317-31$). Complainants did not rebut the evidence of either the decayed condition of the Tree or Appendix 023