Relates to utility intervenor reimbursement.
Sponsor: PARKER Committee: ENERGY AND TELECOMMUNICATIONS
Law Section: Public Service Law
Law: Add S24-c, Pub Serv L; add S97-kkkk, St Fin L
Law Section: Public Service Law
Law: Add S24-c, Pub Serv L; add S97-kkkk, St Fin L
- Jan 4, 2012: REFERRED TO ENERGY AND TELECOMMUNICATIONS
- Jan 5, 2011: REFERRED TO ENERGY AND TELECOMMUNICATIONS
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.
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.