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Jasinski v. Public Utility Commission of Texas

Court of Appeals of Texas, Third District, Austin

June 14, 2017

Kenneth M. Jasinski, Appellant
v.
Public Utility Commission of Texas and Oncor Electric Delivery Company LLC, Appellees

         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT NO. D-1-GN-16-000424, HONORABLE DARLENE BYRNE, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Field and Bourland.

          MEMORANDUM OPINION

          Scott K. Field, Justice.

         Kenneth M. Jasinski, appearing pro se, appeals the trial court's order affirming an order of the Public Utility Commission dismissing his complaint regarding tree trimming activities of Oncor Electric Delivery Company LLC. In three issues Jasinski argues that the Commission: (1)erred in dismissing his claim for failure to state a claim for which relief could be granted; (2)erroneously failed to rule on his proposed findings of fact and conclusions of law; and (3) erred by permitting Oncor to implement a "tree clearance distance rule" without requiring it to be filed as a tariff change. We will affirm.

         BACKGROUND

         Jasinski, a resident of Dallas, filed a complaint with the Commission after Oncor trimmed a live oak tree located on Jasinski's property. According to Jasinski, on February 11, 2015, Oncor "side-trimmed" his live oak tree to provide ten feet of clearance between the tree's branches and a distribution line passing through Jasinski's property. At the time of the trimming, Oncor's Vegetation Management Report, filed with the Commission as required by Commission rules, included the following practice related to clearance between Oncor's conductors and vegetation:

         SR 25.96(f)(1)(B)[1]

         Trimming Clearance and Scheduling Approach

Clearances between conductor and vegetation, at the time of work, is a minimum of seven to ten feet from conductors energized at 600 volts or more, and three to five feet from conductors energized at less than 600 volts.
Projects are selected based on circuits with 1) high vegetation related outages and open wire secondary and 2) mainline projects based on risks. Projects are scheduled by circuit for efficiencies of work.[2]

See Oncor Electric Delivery Company LLC's Annual Vegetation Management Report Pursuant to Substantive Rule §25.96 (May 1, 2014) at 6 (the 2014 Vegetation Management Report); see also 16 Tex. Admin. Code §§ 25.96(e)(1) (Pub. Util. Comm'n of Tex., Vegetation Mgmt.) (requiring utility to maintain vegetation management plan that includes description of utility's tree pruning methodology, trimming clearances, and scheduling approach); 25.96(f)(1)(B) (requiring utility to file with Commission report summarizing vegetation management plan including trimming clearances and scheduling approach). According to the 2014 Vegetation Management Report, this practice conformed to the vegetation management standards set forth in section 218 of the National Electric Safety Code, [3] which provides in pertinent part:

         A. General

1. Vegetation that may damage ungrounded supply conductors should be pruned or removed. Vegetation management should be performed as experience has shown necessary.
NOTE 1: Factors to consider in determining the extent of vegetation management required include, but are not limited to: line voltage class, species' growth rates and failure characteristics, right-of-way limitations, the vegetation's location to the conductors, the potential combined movement of vegetation and conductors during routine winds, and sagging of conductors due to elevated temperatures or icing.
NOTE 2: It is not practical to prevent all tree-conductor contacts on overhead lines.

         In his complaint to the Commission, Jasinski alleged that the side-trimming of the live oak on his property to an "excessive and unnecessary" ten-foot clearance distance was contrary to the Public Utility Regulatory Act, NESC section 218.A.1, Commission policy, standards of "Good Utility Practice, " the clearance practices set forth in Oncor's 2014 Vegetation Management Report, and Oncor's tariff. Specifically, Jasinski alleged that "[s]aid pruning caused by Oncor was about forty-two percent (42%) more than needed to satisfy Oncor's 'adequate space' goal stated in Oncor's 2013 Rule 25.96 Report and in Oncor's 2014 Rule 25.96 Report, and to comport with PURA, [4] NESC 218.A.1, the Commission's policy, 'Good Utility Practice, ' Oncor's Former Clearance Rule and its tariff."

         In May 2015, Oncor filed its 2015 Vegetation Management Report. Regarding Oncor's practice related to clearance between Oncor's conductors and vegetation, the 2015 Report stated:

SR 25.96(f)(1)(B)
Trimming Clearance and Scheduling ...

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