NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A873A
SPONSOR: Cahill TITLE OF BILL:
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
SUMMARY AND DESCRIPTION OF PROVISIONS:
This bill would permit groups of individuals or not-for-profit organiza-
tions that represent residential or small business customers to apply
for reimbursement of its costs for reasonable advocate's fees, reason-
able expert witness fees, and other reasonable costs in a proceeding
before the Public Service Commission (PSC). The Department of Public
Service would be authorized to determine appropriate application proce-
dures. This legislation would also provide for compensation to be
awarded in advance if the participant makes a showing of significant
financial hardship.
The bill provides definitions for "compensation," "participant," "other
reasonable costs," "party," "proceeding," "significant financial hard-
ship," "small business," and "substantial contribution." The bill
establishes application requirements including a statement of planned
participation, description of anticipated, advocate's fees, expert fees
and other costs; and any other material required by the Department. If
participation would impose significant financial hardship on the appli-
cant, evidence of such hardship must also be submitted.
Within thirty days-after the application has been filed, the Department
would determine if the participant may make a substantial contribution
to its final decision. If the participant included evidence of substan-
tial financial hardship, the Department 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. The Department
would also be authorized to recover any advance payments made if the
participant discontinues its participation without the Department's
consent. Criteria would be established by which compensation is calcu-
lated and would require any unused compensation to be returned to the
public utility or utilities. The bill directs the Department to require
participants seeking payment to maintain an itemized record of all
expenses inclined during the proceeding. The Department is authorized to
require participants to join their claims if they have substantially
similar interests.
A public utility or utilities subject to the proceeding must remit any
compensation within thirty days of the proceeding. The Department would
then remit such compensation to the participant. The Department is
authorized to deny any compensation to any participant who attempts to
delay or obstruct a 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 sometimes minimize public participation. It can be
difficult for New Yorkers to follow relevant proceedings. The Commis-
sion'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 proc-
ess, if sought and not fought, will spur a more open and accountable
government regulatory process that may yield creative socially responsi-
ble solutions to difficult issues. This legislation will provide a mech-
anism 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 advo-
cate fees; expert witness fees, and other reasonable costs associated
with their participation.
LEGISLATIVE HISTORY:
2019-2020: A.145 - Referred to Energy
2017-2018: A.17 - Referred to Energy
2015-2016: A.860A - Referred to Energy
2013-2014: A.1247 - Referred to Energy
2011-2012: A.27A - Reported referred to Ways and Means
2010: A.8722D - Amended and recommitted to Ways and Means
2009: A.8722 - Referred to Energy
FISCAL IMPLICATIONS:
None to the State. Intervenor fees would be provided by utilities.
EFFECTIVE DATE:
Thirty days after it shall become law.
STATE OF NEW YORK
________________________________________________________________________
873--A
2021-2022 Regular Sessions
IN ASSEMBLY(Prefiled)
January 6, 2021
___________
Introduced by M. of A. CAHILL, L. ROSENTHAL, THIELE -- Multi-Sponsored
by -- M. of A. GLICK, GOTTFRIED, HEVESI -- read once and referred to
the Committee on Energy -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee
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:
1 Section 1. The public service law is amended by adding a new section
2 24-c to read as follows:
3 § 24-c. Utility intervenor reimbursement. 1. As used in this
4 section, the following terms shall have the following meanings:
5 (a) "Compensation" means payment from the utility intervenor account
6 fund established by section ninety-seven-uuuu of the state finance law,
7 for all or part, as determined by the department, of reasonable advo-
8 cate's fees, reasonable expert witness fees, and other reasonable costs
9 for preparation and participation in a proceeding.
10 (b) "Participant" means a group of persons that apply jointly for an
11 award of compensation under this section and who represent the interests
12 of a significant number of residential or small business customers, or a
13 not-for-profit organization in this state authorized pursuant to its
14 articles of incorporation or bylaws to represent the interests of resi-
15 dential or small business utility customers. For purposes of this
16 section, a participant does not include a non-profit organization or
17 other organization whose principal interests are the welfare of a public
18 utility or its investors or employees, or the welfare of one or more
19 businesses or industries which receive utility service ordinarily and
20 primarily for use in connection with the profit-seeking manufacture,
21 sale, or distribution of goods or services.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01303-03-1
A. 873--A 2
1 (c) "Other reasonable costs" means reasonable out-of-pocket expenses
2 directly incurred by a participant that are directly related to the
3 contentions or recommendations made by the participant that resulted in
4 a substantial contribution.
5 (d) "Party" means any interested party, respondent public utility, or
6 commission staff in a hearing or proceeding.
7 (e) "Proceeding" means a complaint, or investigation, rulemaking, or
8 other formal proceeding before the commission, or alternative dispute
9 resolution procedures in lieu of formal proceedings as may be sponsored
10 or endorsed by the commission, provided however such proceedings shall
11 be limited to those arising under and proceeding pursuant to the follow-
12 ing articles of this chapter: (1) the regulation of the price of gas and
13 electricity, pursuant to article four of this chapter except those
14 described in subparagraph (ii) of paragraph (c) of subdivision twelve of
15 section sixty-six of this chapter; (2) the regulation of the price of
16 steam, pursuant to article four-A of this chapter; (3) the submetering,
17 remetering or resale of electricity to residential premises, pursuant to
18 sections sixty-five and sixty-six of this chapter, and pursuant to regu-
19 lations regarding the submetering, remetering, or resale of electricity
20 adopted by the commission; and (4) such sections of this chapter as are
21 applicable to a proceeding in which the commission makes a finding on
22 the record that the public interest requires the reimbursement of utili-
23 ty intervenor fees pursuant to this section.
24 (f) "Significant financial hardship" means that the participant will
25 be unable to afford, without undue hardship, to pay the costs of effec-
26 tive participation, including advocate's fees, expert witness fees, and
27 other reasonable costs of participation.
28 (g) "Small business" means a business with a gross annual revenue of
29 two hundred fifty thousand dollars or less.
30 (h) "Substantial contribution" means that, in the judgment of the
31 department, the participant's application may substantially assist the
32 commission in making its decision because the decision may adopt in
33 whole or in part one or more factual contentions, legal contentions, or
34 specific policy or procedural recommendations that will be presented by
35 the participant.
36 2. A participant may apply for an award of compensation under this
37 section in a proceeding in which such participant has sought active
38 party status as defined by the department. The department shall deter-
39 mine appropriate procedures for accepting and responding to such appli-
40 cations. At the time of application, such participant shall serve on
41 every party to the proceeding notice of intent to apply for an award of
42 compensation.
43 An application shall include:
44 (a) A statement of the nature and extent and the factual and legal
45 basis of the participant's planned participation in the proceeding as
46 far as it is possible to describe such participation with reasonable
47 specificity at the time the application is filed.
48 (b) At minimum, a reasonably detailed description of anticipated advo-
49 cates and expert witness fees and other costs of preparation and partic-
50 ipation that the participant expects to request as compensation.
51 (c) If participation or intervention will impose a significant finan-
52 cial hardship and the participant seeks payment in advance to an award
53 of compensation in order to initiate, continue or complete participation
54 in the hearing or proceeding, such participant must include evidence of
55 such significant financial hardship in its application.
56 (d) Any other requirements as required by the department.
A. 873--A 3
1 3. (a) Within thirty days after the filing of an application the
2 department shall issue a decision that determines whether or not the
3 participant may make a substantial contribution to the final decision in
4 the hearing or proceeding. If the department finds that the participant
5 requesting compensation may make a substantial contribution, the depart-
6 ment shall describe this substantial contribution and determine the
7 amount of compensation to be paid pursuant to subdivision four of this
8 section.
9 (b) Notwithstanding subdivision four of this section, if the depart-
10 ment finds that the participant has a significant financial hardship,
11 the department may direct the public utility or utilities subject to the
12 proceeding to pay all or part of the compensation to the department to
13 be provided to the participant prior to the end of the proceeding. In
14 the event that the participant discontinues its participation in the
15 proceeding without the consent of the department, the department shall
16 be entitled to, in whole or in part, recover any payments made to such
17 participant to be refunded to the public utility or utilities that
18 provided such payment.
19 (c) The computation of compensation pursuant to paragraph (a) of this
20 subdivision shall take into consideration the market rates paid to
21 persons of comparable training and experience who offer similar
22 services. The compensation awarded may not, in any case, exceed the
23 comparable market rate for services paid by the department or the public
24 utility, whichever is greater, to persons of comparable training and
25 experience who are offering similar services.
26 (d) Any compensation awarded to a participant and not used by such
27 participant shall be returned to the department for refund to the public
28 utility or utilities that provided such payment.
29 (e) The department shall require that participants seeking payment
30 maintain an itemized record of all expenditures incurred as a result of
31 such proceeding.
32 (i) The department may use the itemized record of expenses to verify
33 the claim of financial hardship by a participant seeking payment pursu-
34 ant to paragraph (c) of subdivision two of this section.
35 (ii) The department may use the record of expenditures in determining,
36 after the completion of a proceeding, if any unused funds remain.
37 (iii) The department shall preserve the confidentiality of the partic-
38 ipant's records in making any audit or determining the availability of
39 funds after the completion of a proceeding.
40 (f) In the event that the department finds that two or more partic-
41 ipants' applications have substantially similar interests, the depart-
42 ment may require such participants to apply jointly in order to receive
43 compensation.
44 4. Any compensation pursuant to this section shall be paid at the
45 conclusion of the proceeding by the public utility or utilities subject
46 to the proceeding within thirty days. Such compensation shall be remit-
47 ted to the department which shall then remit such compensation to the
48 participant.
49 5. The department shall deny any award to any participant who attempts
50 to delay or obstruct the orderly and timely fulfillment of the depart-
51 ment's responsibilities.
52 § 2. The state finance law is amended by adding a new section 97-uuuu
53 to read as follows:
54 § 97-uuuu. Utility intervenor account. 1. There is hereby established
55 in the joint custody of the state comptroller and the commissioner of
A. 873--A 4
1 taxation and finance a fund to be known as the utility intervenor
2 account.
3 2. Such account shall consist of all utility intervenor reimbursement
4 monies received from utilities pursuant to section twenty-four-c of the
5 public service law.
6 § 3. This act shall take effect on the thirtieth day after it shall
7 have become a law.
