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H.739

Introduced by   Representatives Klein of East Montpelier, Darrow of Dummerston, Edwards of Brattleboro, Masland of Thetford, McCullough of Williston and Pellett of Chester

Referred to Committee on

Date:

Subject:  Public service; intervenor funding

Statement of purpose:  This bill proposes to establish a process by which the public service board may authorize intervenor funding with respect to matters before the board.  The bill proposes to authorize funding of intervenors that are municipalities as well as intervenors that are not municipalities, but that can establish that full participation would cause a significant financial hardship to the intervenor.  The bill proposes to provide this funding in situations where the intervenor substantially benefits the general good by contributing to the proceeding.

AN ACT RELATING TO AUTHORIZING INTERVENOR FUNDING FOR PROCEEDINGS BEFORE THE PUBLIC SERVICE BOARD

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  30 V.S.A. § 34 is added to read:

§ 34.  INTERVENOR FUNDING 

(a)  Purpose.  The purpose of this section is to provide compensation for reasonable advocate’s fees, reasonable expert witness fees, and other reasonable costs to intervenors of participation or intervention in any proceeding of the board where the intervenor substantially benefits the general good by contributing to the proceeding.

(b)  Definitions.

(1)  “Board” means the Vermont public service board.

(2)  “Compensation” means payment for all or part, as determined by the board, of reasonable advocate fees, reasonable expert witness fees, and other reasonable costs of preparation for and participation in a proceeding, including the fees and costs of obtaining an award under this section and of obtaining judicial review, if any.

(3)  “Expert witness fees” means recorded or billed costs incurred by an intervenor for an expert witness.

(4)  “Intervenor” means either of the following:

(A)  A participant that is, or which represents, consumers, customers, or subscribers of any utility that is subject to the jurisdiction of the board;

(B)  Any local governmental agency, including a municipality.

(5)  “Other reasonable costs” means reasonable out-of-pocket expenses directly incurred by an intervenor that are directly related to the contentions or recommendations made by the intervenor.

(6)  “Party” means any interested party, respondent public utility, or board staff in a hearing or proceeding.

(7)  “Proceeding” means an application, complaint, or investigation, rulemaking, alternative dispute resolution procedures in lieu of formal proceedings as may be sponsored or endorsed by the board, or other formal proceeding before the board.

(8)  “Significant financial hardship” means either that the intervenor cannot afford, without undue hardship, to pay the costs of effective participation, including advocate’s fees, expert witness fees, and other reasonable costs of participation, or that, in the case of a group or organization, the economic interest of the individual members of the group or organization is small in comparison to the costs of effective participation in the proceeding.

(9)  “Substantial contribution” means that, in the discretion of the board, the intervenor’s presentation has substantially assisted the board in the making of its order or decision because the order or decision has adopted in whole or in part the factual contentions, legal contentions, or policy or procedural recommendations presented by the intervenor; provided that the position advocated by the intervenor is not the same or similar to the position advocated by the department of public service or the staff of the board.  If the intervenor’s participation has resulted in a substantial contribution, even if the decision adopts that intervenor’s contention or recommendations only in part, the board shall award the intervenor compensation for all, or a reasonable proportion of, reasonable advocate’s fees, reasonable expert witness fees, and other reasonable costs incurred by the intervenor in preparing or presenting that contention or recommendation.

(c)  Eligible intervenors.  An intervenor is eligible for intervenor funding if:

(1)  The intervenor complies with the eligibility determination requirements, and the intervenor is a municipality; or

(2)  Participation in the proceeding by the intervenor would impose a significant financial hardship on the intervenor.

(d)  Determination of eligibility for compensation.

(1)  An intervenor that intends to seek an award under this section shall, within 30 days after any prehearing conference, file and serve on all parties to the proceeding a notice of intent to claim compensation.  In cases in which no prehearing conference is scheduled or in which the board anticipates that the proceeding will take less than 30 days, the board may determine the procedure to be used in filing the notice of intent to claim compensation.  In cases in which the schedule would not reasonably allow parties to identify issues within the 30‑day time frame or in which new issues emerge subsequent to the time set for filing, the board may determine an appropriate procedure for accepting new or revised notices of intent.

(2)(A)  If the intervenor is a municipality, the notice of intent to claim compensation shall include the following:

(i)  A statement of the nature and extent of the intervenor’s planned participation in the proceeding as far as it is possible to set it out when the notice of intent is filed;

(ii)  An estimate of the compensation that the intervenor expects to request.

(B)  If the intervenor is not a municipality, the notice of intent shall include the following:

(i)  A statement of the nature and extent of the intervenor’s planned participation in the proceeding as far as it is possible to set it out when the notice of intent is filed;

(ii)  An estimate of the compensation that the intervenor expects to request;

(iii)  All facts known to the intervenor demonstrating that, but for the award of compensation, participation in the proceeding will work a significant financial hardship on the intervenor;

(iv)  A statement about the appropriateness or inappropriateness of consolidating the presentation with that of other intervenors who will advocate the same or similar position.

(3)  Within 15 days after service of the notice of intent to claim compensation, the board may direct the staff, and may permit any other interested parties, to file a response to the notice.

(4)  Within 30 days after the filing of the notice of intent, the board shall enter an order stating, with respect to each intervenor who has filed for funding:

(A)  Whether the intervenor is eligible for funding based on the criteria set forth in this section;

(B)  Whether those intervenors advocating similar positions shall consolidate their representations by requiring common legal representation chosen by the intervenors.  No award of compensation shall be made to those intervenors who fail to consolidate their presentations after being so ordered by the board.  This does not preclude consolidated intervenors from retaining more than one legal representative so long as only one representative enters an appearance on behalf of the consolidated intervenors.  In a case in which more than one legal representative is retained, the intervenors may divide the award among the legal representatives.

(e)  Determination of amount of compensation.  Following issuance of a final order or decision by the board in the hearing or proceeding, pursuant to this section, an intervenor that has been found to be eligible for an award of compensation may file a request for an award within 60 days.  The request shall include at a minimum a detailed description of services and expenditures and a description of the intervenor’s substantial contribution to the hearing or proceeding.  Within 30 days after service of the request, any other party may file a response to the request.

(1)  The board may audit or direct an audit of the records and books of the intervenor to verify the basis for the award.  The board shall preserve the confidentiality of the intervenor’s records.  Within 20 days after completion of the audit, the board shall prepare and file an audit report.  Any other party may file a response to the audit report within 20 days.

(2)  Within 75 days after the filing of a request for compensation pursuant to this section or within 50 days after filing the audit report, whichever occurs later, the board shall issue a decision regarding whether the municipality made a substantial contribution to the final order or decision.  If the board finds that a substantial contribution was made, the board shall describe the substantial contribution and shall determine the amount of compensation to be paid.  The award of compensation shall reflect market rates paid to persons of comparable training and experience who offer similar services.  The compensation awarded shall not exceed comparable market rates of persons of comparable training and experience offering similar services paid by the board or the public utility, whichever one pays the greater rate.

(3)  The board shall deny an award to any intervenor that attempts to delay or obstruct the orderly and timely fulfillment of the board’s responsibilities.

(4)  The payment of expenses of intervenors that are in financial competition with a public utility involved in proceedings before the board is prohibited.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us