S1088-2011 Actions

• Jan 4, 2012: REFERRED TO ENERGY AND TELECOMMUNICATIONS
• Jan 5, 2011: REFERRED TO ENERGY AND TELECOMMUNICATIONS

S1088-2011 Memo

BILL NUMBER:S1088

TITLE OF BILL:
An act
to amend the public service law, in relation to
utility intervenor reimbursement;
and to amend the state finance law in relation
to establishing the
utility intervenor account

SUBJECT AND PURPOSE:
The purpose of this bill is to establish
procedural and substantive criteria for intervenor reimbursement to a
participant for its reasonable costs of participation in any
proceeding before the Public Service Commission (PSC).

SUMMARY AND DESCRIPTION OF PROVISIONS:
This bill would permit groups
of individuals or not-for-profit organizations that represent
residential or small business customers to apply for reimbursement of
its costs for reasonable advocate's fees, reasonable expert witness
fees, and other reasonable costs in a proceeding before the Public
Service Commission (PSC).
The PSC would he authorized to determine appropriate application
procedures. This legislation would also provide for compensation to
be awarded in advance if the participant makes a showing of
significant financial hardship.

Section 1 of this legislation would establish definitions for
"compensation," "participant," "commission," "other reasonable
costs," "party," "proceeding," "significant financial hardship,"
"small business," and "substantial contribution.".

Section 2 of this legislation would establish requirements that
participants would need to include in its application to be submitted
to the PSC. This section would require a statement of planned
participation; description of anticipated advocate's fees, expert
fees and other costs; and, any other material required by the PSC. If
participation would impose significant financial hardship on the
applicant, evidence of such hardship must also be submitted.

Section 3 of this legislation would require the PSC, within
seventy-five days after the application has been filed, to issue a
decision that determines if the participant has made a substantial
contribution to its final decision. If the participant included
evidence of substantial financial hardship, the PSC would determine
whether such showing was made and the amount of compensation to be
paid by the public utility or utilities prior to the end of the
proceeding. This section would authorize the PSC to recover any
advance payments made if the participant discontinues its
participation without the PSC's consent. This section would establish
the criteria in which compensation is calculated and would require
any unused compensation to be returned
to the public utility or utilities. This section would authorize the
PSC to audit the records and hooks of a participant that would claim
significant financial hardship. This section would also authorize the


PSC to require participants to join their claims if they have
substantially similar interests.

Section 4 of this legislation would require a public utility or
utilities subject to the proceeding to remit any compensation within
thirty days of the proceeding. The PSC would then remit such
compensation to the participant.

Section 5 of this legislation would authorize the Department to
deny any compensation to any participant who attempts to delay
or obstruct the proceeding.

JUSTIFICATION:
The intent of this legislation is to recognize and
remedy the fact that individual action by residential consumers and
small businesses for the purposes of participating in utility matters
and communicating their views is rendered impracticable by reason
of the disproportionate expense of taking such action.

PSC proceedings are offered in a way that minimizes public
participation. It is incredibly difficult for typical New Yorkers to
remain on top of the goings-on of the PSC. The Commission's usual
meeting time is 10:30 a.m., a time when the average citizen or small
business owner is not likely to participate. In many instances, the
only people who can attend on a regular basis are most likely those
whose job depends on it, such as representatives of the utilities and
other special interests.

The legislation recognizes that citizen participation should be
encouraged when government regulators set policy. Individuals who
seek to participate in Public Service Commission (PSC) utility
proceedings are referred to as intervenors. Increased public
participation through the through the intervenor process, if sought
and not fought, will spur a more open and accountable government
regulatory process that may yield creative socially responsible
solutions to difficult issues. This legislation will provide a
mechanism to allow residential and small business utility customers
to access financial resources to become active participants in PSC
proceedings. This includes the ability to receive compensation of
advocate fees, expert witness fees, and other reasonable costs
associated with their participation.

LEGISLATIVE HISTORY:
2009-10: S.7687/A.8722 - Passed the Senate/Ways and Means

FISCAL IMPLICATIONS:
None to the State. Intervenor fees would be provided by utilities.

EFFECTIVE DATE:
This legislation would be effective thirty days after
being signed into law.

S1088-2011 Text

                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                    1088

                         2011-2012 Regular Sessions

                              I N  SENATE

                               January 5, 2011
                                 ___________

  Introduced  by  Sen.  PARKER -- read twice and ordered printed, and when
    printed to be committed to the Committee on  Energy  and  Telecommuni-
    cations

  AN  ACT to amend the public service law, in relation to utility interve-
    nor reimbursement; and to amend the state finance law in  relation  to
    establishing the utility intervenor account

    THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
  BLY, DO ENACT AS FOLLOWS:


    Section 1.  The public service law is amended by adding a new  section
  24-c to read as follows:

    S  24-C.    UTILITY  INTERVENOR  REIMBURSEMENT.  1.    AS USED IN THIS
  SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:

    (A) "COMPENSATION" MEANS PAYMENT FROM THE UTILITY  INTERVENOR  ACCOUNT
  FUND  ESTABLISHED BY SECTION NINETY-SEVEN-KKKK OF THE STATE FINANCE LAW,
  FOR ALL OR PART, AS DETERMINED BY THE COMMISSION,  OF  REASONABLE  ADVO-
  CATE'S  FEES, REASONABLE EXPERT WITNESS FEES, AND OTHER REASONABLE COSTS
  FOR PREPARATION AND PARTICIPATION IN A PROCEEDING.
    (B) "PARTICIPANT" MEANS A GROUP OF PERSONS THAT APPLY JOINTLY  FOR  AN
  AWARD OF COMPENSATION UNDER THIS SECTION AND WHO REPRESENT THE INTERESTS
  OF A SIGNIFICANT NUMBER OF RESIDENTIAL OR SMALL BUSINESS CUSTOMERS, OR A
  NOT-FOR-PROFIT  ORGANIZATION  IN  THIS  STATE AUTHORIZED PURSUANT TO ITS
  ARTICLES OF INCORPORATION OR BYLAWS TO REPRESENT THE INTERESTS OF  RESI-
  DENTIAL  OR  SMALL  BUSINESS  UTILITY  CUSTOMERS.  FOR  PURPOSES OF THIS
  SECTION, A PARTICIPANT DOES NOT INCLUDE  A  NON-PROFIT  ORGANIZATION  OR
  OTHER ORGANIZATION WHOSE PRINCIPAL INTERESTS ARE THE WELFARE OF A PUBLIC
  UTILITY  OR  ITS  INVESTORS  OR EMPLOYEES, OR THE WELFARE OF ONE OR MORE
  BUSINESSES OR INDUSTRIES WHICH RECEIVE UTILITY  SERVICE  ORDINARILY  AND
  PRIMARILY  FOR  USE  IN  CONNECTION WITH THE PROFIT-SEEKING MANUFACTURE,
  SALE, OR DISTRIBUTION OF GOODS OR SERVICES.
    (C) "COMMISSION" MEANS THE NEW YORK STATE PUBLIC SERVICE COMMISSION.

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD00871-01-1

 S. 1088                             2

    (D) "OTHER REASONABLE COSTS" MEANS REASONABLE  OUT-OF-POCKET  EXPENSES
  DIRECTLY  INCURRED  BY  A  PARTICIPANT  THAT ARE DIRECTLY RELATED TO THE
  CONTENTIONS OR RECOMMENDATIONS MADE BY THE PARTICIPANT THAT RESULTED  IN
  A SUBSTANTIAL CONTRIBUTION.
    (E)  "PARTY" MEANS ANY INTERESTED PARTY, RESPONDENT PUBLIC UTILITY, OR
  COMMISSION STAFF IN A HEARING OR PROCEEDING.
    (F) "PROCEEDING" MEANS A COMPLAINT, OR INVESTIGATION,  RULEMAKING,  OR
  OTHER  FORMAL  PROCEEDING  BEFORE THE COMMISSION, OR ALTERNATIVE DISPUTE
  RESOLUTION PROCEDURES IN LIEU OF FORMAL PROCEEDINGS AS MAY BE  SPONSORED
  OR  ENDORSED  BY THE COMMISSION, PROVIDED HOWEVER SUCH PROCEEDINGS SHALL
  BE LIMITED TO THOSE ARISING UNDER AND PROCEEDING PURSUANT TO THE FOLLOW-
  ING ARTICLES OF THIS CHAPTER: (1) THE REGULATION OF THE PRICE OF GAS AND
  ELECTRICITY, PURSUANT TO ARTICLE FOUR OF THIS  CHAPTER;  (2)  THE  REGU-
  LATION  OF  THE PRICE OF STEAM, PURSUANT TO ARTICLE FOUR-A OF THIS CHAP-
  TER; (3) THE SUBMETERING, REMETERING OR RESALE OF ELECTRICITY  TO  RESI-
  DENTIAL  PREMISES,  PURSUANT TO SECTION SIXTY-FIVE AND SIXTY-SIX OF THIS
  CHAPTER, AND PURSUANT TO 16 NYCRR PART 96; AND (4) SUCH SECTIONS OF THIS
  CHAPTER AS ARE APPLICABLE TO A PROCEEDING IN WHICH THE COMMISSION  MAKES
  A FINDING ON THE RECORD THAT THE PUBLIC INTEREST REQUIRES THE REIMBURSE-
  MENT OF UTILITY INTERVENOR FEES PURSUANT TO THIS SECTION.
    (G)  "SIGNIFICANT  FINANCIAL HARDSHIP" MEANS THAT THE PARTICIPANT WILL
  BE UNABLE TO AFFORD, WITHOUT UNDUE HARDSHIP, TO PAY THE COSTS OF  EFFEC-
  TIVE  PARTICIPATION, INCLUDING ADVOCATE'S FEES, EXPERT WITNESS FEES, AND
  OTHER REASONABLE COSTS OF PARTICIPATION.
    (H) "SMALL BUSINESS" MEANS A BUSINESS WITH A GROSS ANNUAL  REVENUE  OF
  TWO HUNDRED FIFTY THOUSAND DOLLARS OR LESS.
    (I)  "SUBSTANTIAL  CONTRIBUTION"  MEANS  THAT,  IN THE JUDGMENT OF THE
  DEPARTMENT, THE PARTICIPANT'S APPLICATION MAY SUBSTANTIALLY  ASSIST  THE
  COMMISSION  IN  MAKING  ITS  DECISION  BECAUSE THE DECISION MAY ADOPT IN
  WHOLE OR IN PART ONE OR MORE FACTUAL CONTENTIONS, LEGAL CONTENTIONS,  OR
  SPECIFIC  POLICY OR PROCEDURAL RECOMMENDATIONS THAT WILL BE PRESENTED BY
  THE PARTICIPANT.
    (J) "DEPARTMENT"  MEANS  THE  NEW  YORK  STATE  DEPARTMENT  OF  PUBLIC
  SERVICE.
    2.  A  PARTICIPANT  MAY  APPLY FOR AN AWARD OF COMPENSATION UNDER THIS
  SECTION IN A PROCEEDING IN WHICH  SUCH  PARTICIPANT  HAS  SOUGHT  ACTIVE
  PARTY  STATUS AS DEFINED BY THE DEPARTMENT OR COMMISSION. THE DEPARTMENT
  OR COMMISSION SHALL DETERMINE APPROPRIATE PROCEDURES FOR  ACCEPTING  AND
  RESPONDING  TO  SUCH  APPLICATIONS.    AT  THE TIME OF APPLICATION, SUCH
  PARTICIPANT SHALL SERVE ON EVERY  PARTY  TO  THE  PROCEEDING  NOTICE  OF
  INTENT TO APPLY FOR AN AWARD OF COMPENSATION.
    AN APPLICATION SHALL INCLUDE:

    (A)  A  STATEMENT  OF  THE NATURE AND EXTENT AND THE FACTUAL AND LEGAL
  BASIS OF THE PARTICIPANT'S PLANNED PARTICIPATION IN  THE  PROCEEDING  AS
  FAR  AS  IT  IS  POSSIBLE TO DESCRIBE SUCH PARTICIPATION WITH REASONABLE
  SPECIFICITY AT THE TIME THE APPLICATION IS FILED.
    (B) AT MINIMUM, A REASONABLY DETAILED DESCRIPTION OF ANTICIPATED ADVO-
  CATES AND EXPERT WITNESS FEES AND OTHER COSTS OF PREPARATION AND PARTIC-
  IPATION THAT THE PARTICIPANT EXPECTS TO REQUEST AS COMPENSATION.
    (C) IF PARTICIPATION OR INTERVENTION WILL IMPOSE A SIGNIFICANT  FINAN-
  CIAL  HARDSHIP  AND THE PARTICIPANT SEEKS PAYMENT IN ADVANCE TO AN AWARD
  OF COMPENSATION IN ORDER TO INITIATE, CONTINUE OR COMPLETE PARTICIPATION
  IN THE HEARING OR PROCEEDING, SUCH PARTICIPANT MUST INCLUDE EVIDENCE  OF
  SUCH SIGNIFICANT FINANCIAL HARDSHIP IN ITS APPLICATION.
    (D) ANY OTHER REQUIREMENTS AS REQUIRED BY THE DEPARTMENT.

 S. 1088                             3

    3.  (A)  WITHIN  THIRTY  DAYS  AFTER  THE FILING OF AN APPLICATION THE
  DEPARTMENT SHALL ISSUE A DECISION THAT DETERMINES  WHETHER  OR  NOT  THE
  PARTICIPANT MAY MAKE A SUBSTANTIAL CONTRIBUTION TO THE FINAL DECISION IN
  THE  HEARING OR PROCEEDING. IF THE DEPARTMENT FINDS THAT THE PARTICIPANT
  REQUESTING COMPENSATION MAY MAKE A SUBSTANTIAL CONTRIBUTION, THE DEPART-
  MENT  SHALL  DESCRIBE  THIS  SUBSTANTIAL  CONTRIBUTION AND DETERMINE THE
  AMOUNT OF COMPENSATION TO BE PAID PURSUANT TO SUBDIVISION FOUR  OF  THIS
  SECTION.
    (B)  NOTWITHSTANDING  SUBDIVISION FOUR OF THIS SECTION, IF THE DEPART-
  MENT FINDS THAT THE PARTICIPANT HAS A  SIGNIFICANT  FINANCIAL  HARDSHIP,
  THE DEPARTMENT MAY DIRECT THE PUBLIC UTILITY OR UTILITIES SUBJECT TO THE
  PROCEEDING  TO  PAY ALL OR PART OF THE COMPENSATION TO THE DEPARTMENT TO
  BE PROVIDED TO THE PARTICIPANT PRIOR TO THE END OF  THE  PROCEEDING.  IN
  THE  EVENT  THAT  THE  PARTICIPANT DISCONTINUES ITS PARTICIPATION IN THE
  PROCEEDING WITHOUT THE CONSENT OF THE DEPARTMENT, THE  DEPARTMENT  SHALL
  BE  ENTITLED  TO, IN WHOLE OR IN PART, RECOVER ANY PAYMENTS MADE TO SUCH
  PARTICIPANT TO BE REFUNDED TO  THE  PUBLIC  UTILITY  OR  UTILITIES  THAT
  PROVIDED SUCH PAYMENT.
    (C)  THE COMPUTATION OF COMPENSATION PURSUANT TO PARAGRAPH (A) OF THIS
  SUBDIVISION SHALL TAKE INTO  CONSIDERATION  THE  MARKET  RATES  PAID  TO
  PERSONS   OF  COMPARABLE  TRAINING  AND  EXPERIENCE  WHO  OFFER  SIMILAR
  SERVICES. THE COMPENSATION AWARDED MAY NOT,  IN  ANY  CASE,  EXCEED  THE
  COMPARABLE MARKET RATE FOR SERVICES PAID BY THE DEPARTMENT OR THE PUBLIC
  UTILITY,  WHICHEVER  IS  GREATER,  TO PERSONS OF COMPARABLE TRAINING AND
  EXPERIENCE WHO ARE OFFERING SIMILAR SERVICES.
    (D) ANY COMPENSATION AWARDED TO A PARTICIPANT AND  NOT  USED  BY  SUCH
  PARTICIPANT SHALL BE RETURNED TO THE COMMISSION FOR REFUND TO THE PUBLIC
  UTILITY OR UTILITIES THAT PROVIDED SUCH PAYMENT.
    (E)  THE  COMMISSION  MAY AUDIT THE RECORDS AND BOOKS OF A PARTICIPANT
  SEEKING PAYMENT PURSUANT TO PARAGRAPH (C) OF  SUBDIVISION  TWO  OF  THIS
  SECTION  TO  THE  EXTENT  NECESSARY  TO  VERIFY THE CLAIM OF SIGNIFICANT
  FINANCIAL HARDSHIP. THE DEPARTMENT SHALL PRESERVE THE CONFIDENTIALITY OF
  THE PARTICIPANT'S RECORDS IN MAKING ITS AUDIT.
    (F) IN THE EVENT THAT THE DEPARTMENT FINDS THAT TWO  OR  MORE  PARTIC-
  IPANTS'  APPLICATIONS  HAVE SUBSTANTIALLY SIMILAR INTERESTS, THE DEPART-
  MENT MAY REQUIRE SUCH PARTICIPANTS TO APPLY JOINTLY IN ORDER TO  RECEIVE
  COMPENSATION.
    4.  ANY  COMPENSATION  PURSUANT  TO  THIS SECTION SHALL BE PAID AT THE
  CONCLUSION OF THE PROCEEDING BY THE PUBLIC UTILITY OR UTILITIES  SUBJECT
  TO  THE PROCEEDING WITHIN THIRTY DAYS. SUCH COMPENSATION SHALL BE REMIT-
  TED TO THE COMMISSION WHICH SHALL THEN REMIT SUCH  COMPENSATION  TO  THE
  PARTICIPANT.
    5. THE COMMISSION SHALL DENY ANY AWARD TO ANY PARTICIPANT WHO ATTEMPTS
  TO  DELAY  OR OBSTRUCT THE ORDERLY AND TIMELY FULFILLMENT OF THE DEPART-
  MENT'S OR COMMISSION'S RESPONSIBILITIES.
    S 2. The state finance law is amended by adding a new section  97-kkkk
  to read as follows:

    S  97-KKKK. UTILITY INTERVENOR ACCOUNT. 1. THERE IS HEREBY ESTABLISHED
  IN THE JOINT CUSTODY OF THE STATE COMPTROLLER AND  THE  COMMISSIONER  OF
  TAXATION  AND  FINANCE  A  FUND  TO  BE  KNOWN AS THE UTILITY INTERVENOR
  ACCOUNT.
    2. SUCH ACCOUNT SHALL CONSIST OF ALL UTILITY INTERVENOR  REIMBURSEMENT
  MONIES  RECEIVED FROM UTILITIES PURSUANT TO SECTION TWENTY-FOUR-C OF THE
  PUBLIC SERVICE LAW.
    S 3. This act shall take effect on the thirtieth day  after  it  shall
  have become a law.