W. Va. Code R. § 150-3-11

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 150-3-11 - Consumer Reimbursement Program

11.1. Statement of policy.

11.1.1. The Public Service Commission of West Virginia may award reimbursement for reasonable attorneys' fees, expert witness fees, and other reasonable costs of participation incurred by an electric consumer intervenor in any proceeding relating to the standards established in Subtitle B of Title I of the Public Utility Regulatory Policies Act of 1978, Public Law No. 95-617, Section 111 through 117 (November 8, 1978), 16 U.S.C.A. § 2621 through § 2627 (Supp. 1980), hereinafter "PURPA". Such participation must have substantially contributed to the approval, in whole or in part, of a position advocated by the electric consumer intervenor. The electric consumer intervenor must have also satisfied the requirements established in this rule.

11.1.2. This reimbursement program is established to ensure adequate participation by electric consumers in these PURPA proceedings. Reimbursement will only be available when the State, through any agency, including the Commission, has not provided an alternative means which can ensure that the electric consumer intervenor's interest is adequately represented. Such alternative means may include, but is not limited to, an office of consumer advocate within the Commission, an office of utility consumer advocacy in the Attorney General's Office, a legislative office of Public Counsel, or other similar state agency, office or mechanism. The alternative means may be in the form of either reimbursement to the electric consumer intervenor or representation of the electric consumer intervenor's interest. The adequacy of the alternative means is to be determined by the Commission, giving due consideration to the electric consumer intervenor's interest and the position represented by the alternative means.

11.2. Preliminary determination of eligibility.

11.2.1. An electric consumer intervenor who wishes to be eligible for reimbursement of the costs of participation in PURPA Title I, Subtitle B proceeding may apply to the Commission for a preliminary determination of eligibility. The application shall be brief and shall:

11.2.1.a. State the consumer interest represented by the electric consumer intervenor, the relevance of the hearings to that interest and the reason representation of that interest is necessary for a fair determination in the proceeding;

11.2.1.b. Outline the general nature of the electric consumer intervenor's expected participation and the anticipated budget;

11.2.1.c. Contain convincing evidence indicating that, but for an award of fees and costs, participation will be a significant financial hardship to the electric consumer intervenor;

11.2.1.d. Be served upon all affected utilities and other known parties and intervenors to the proceeding; and

11.2.1.e. Set forth the name(s) and address(es) of the electric consumer(s), the name(s) of the utility(ies) from which compensation may ultimately be requested, and the case name and number of the proceeding in which the applicant has intervened or will intervene.

11.2.1.f. The burden of proving significant hardship is placed on the applicant/electric consumer intervenor and will be determined by the Commission in accordance with Rule 11.2.3.a. below.

11.2.2. Affected utilities, parties and other intervenors may file any objections to an application for eligibility within a reasonable time of the filing of the application, in any event, before the Commission enters an order granting or denying the application. The failure of any party to file objections to an eligibility application within the prescribed period precludes such party from raising an objection involving the preliminary eligibility criteria at a later period in the proceedings. The objecting party must state specific reasons for the objection.

11.2.3. The Commission may within a reasonable time:

11.2.3.a. Make an affirmative determination of eligibility if the application shows that the electric consumer intervenor has satisfied its burden of proving significant financial hardship. Significant financial hardship may be established by demonstrating that the electric consumer intervenor does not have sufficient resources available to participate effectively in the proceeding without such an award. The Commission in determining significant financial hardship shall give due consideration to the electric consumer intervenor/applicant's other financial burdens, including those associated with intervention in other Commission cases. A decision as to whether a significant financial hardship exists shall be within the sole judgment of the Commission; and

11.2.3.b. Condition a preliminary determination of eligibility upon the requirement that electric consumer intervenors with the same or similar interests share a common legal representative and common expert witnesses.

11.3. Award and cost determination procedure.

11.3.1. At the time of the issuance of a final order the Commission shall determine whether to award participation costs to an electric consumer intervenor who has fulfilled the requirements of this rule.

11.3.2. No award shall be made if an alternative means of adequate representation of the electric consumer intervenor's interests has been provided by the State in such forms including, but not limited to, the Commission's Staff, the Commission's Consumer Advocate Division, the Attorney General, a legislative office of Public Counsel or other state agency or office having authority to intervene and represent the interests of electric consumers. Such alternative means of adequate representation must, in the Commission's judgment:

11.3.2.a. Be available to persons who have or represent an interest which would not otherwise be adequately represented, the representation of which interest is necessary for a fair determination in the proceedings;

11.3.2.b. Be available to persons who are, or represent an interest which is, unable to effectively participate in the proceeding because of an inability to pay for reasonable attorney's fees, expert witness fees, and other reasonable participation costs; and

11.3.2.c. Satisfy the definition of alternative means of adequate representation set forth in the statement of policy section of this rule.

11.3.3. The determination as to which electric consumer intervenors are entitled to reimbursement shall be made by the Commission after considering the quality of the consumer intervention and the effect of that intervention upon the ultimate decision of the Commission in the proceeding. An award shall be made only if, in the Commission's judgment, the electric consumer intervenor's participation in the proceeding substantially contributed to the approval, in whole or in part, of a position advocated by the electric consumer intervenor. The amount of the award shall be commensurate with the contribution made. In determining this amount, the Commission may consider the actual costs of participation to the electric consumer intervenor and the prevailing market rates in West Virginia for the kind and quality of services rendered. Reasonable attorneys' fees, expert witness fees and other reasonable expenses of participation are compensable. These costs shall be assessed against such utility affected by the proceeding.

11.3.4. In the event that more than one utility is affected, each utility's share of the assessment shall be determined by multiplying the total award by the ratio of that utility's total retail Kwh sales in West Virginia to the total retail Kwh sales in West Virginia of all the affected utility companies in the proceedings. The ratio is to be calculated using figures for the most recently completed calendar year.

11.3.5. The electric consumer intervenor shall include a memorandum of costs with the initial brief to be filed after the close of the taking of evidence. The memorandum must set forth with detail the name(s) and address(es) of the electric consumer(s); the name(s) of the utility(ies) from which compensation is being requested; the case name and number of the proceeding in which the applicant has intervened, and the costs for which compensation is claimed.

11.3.5.a. Any party may include an objection to the reasonableness of any fee or cost with the filing of reply briefs. The Commission may, in its final order and after consideration of the memorandum of costs and any objections thereto make an award and, if necessary, allocate the responsibility for payment of that award among the various affected utilities.

11.3.5.b. Any electric consumer intervenor who has not been awarded costs in the Commission's final order may petition the Commission for reconsideration. The petition must include a memorandum of cost as set forth above. The Commission shall dispose of such petition within a reasonable time by entering an order either granting or denying the petition.

11.4. Payment and accounting treatment.

11.4.1. Payment of costs under this rule shall be made by the affected utility or utilities within thirty (30) days of the date on which a Commission order granting an award issued under Rule 11.2.3.a. If costs are not paid within thirty (30) days of said final order, the electric consumer intervenor may initiate procedures to enforce the order pursuant to W. Va. Code §§ 24-4-6 or 24-4-7.

11.4.2. All monies paid to electric consumer intervenors by an affected utility under this rule shall be treated as allowable operating expense in the rate case in which the electric consumers intervened, unless the Commission determines that another approach is more appropriate.

W. Va. Code R. § 150-3-11