Section 2.000 RULES OF
PRACTICE
2.100 Scope and
Construction of Rules.
2.101 Applicability
These rules shall apply in all proceedings before the
Board.
2.102
Definitions
(A) Board: the Vermont
Public Service Board and any hearing examiner appointed by the Board
wherever the context admits of such a construction.
(B) Clerk: the clerk of the
Board.
(C) Filing (when
used as a noun): any petition, application, complaint, motion,
exhibit or any other document or thing of any description which is
required or permitted to be filed with the Board in connection with a
pending case.
2.103 Vermont Rules of Civil
Procedure
The Vermont Rules of Civil Procedure, whether
specifically adopted herein by reference or whether made applicable
by Rule 2.105, below, shall, subject to Rule 2.104, below, apply in
the form in which they exist on June 1, 1982 and as they may
thereafter from time to time be amended. References in such rules to
any judge or to any trial court shall be deemed to be a reference to
the Board; references to the clerk of the court shall be deemed to be
references to the clerk of the Board; references to trials shall be
deemed to be references to hearings; references to complaints shall
be deemed to be references to petitions, applications or complaints;
and references to actions shall be deemed to be references to
proceedings before the Board. Where less than the whole of any rule
of the Vermont Rules of Civil Procedures is specifically adopted by
reference, the provisions of the remainder thereof shall not apply
except by specific order of the Board issued pursuant to Rule 2.107.
2.104 Conflicting
Authority
In the event of any conflict between the provisions
of any other Rule or General Order of the Board and these rules, the
former shall prevail. In the event of any conflict between otherwise
applicable provisions of the Vermont Rules of Civil Procedure and any
Rule or General Order of the Board, including any provision of these
rules, the latter shall prevail.
2.105 Procedures Not Specifically
Governed
Procedures not specifically governed herein shall be
governed by the Vermont Rules of Civil Procedure, by any applicable
Rule or General Order, or by any applicable statute.
2.106 Construction
These rules shall be liberally construed to secure
the just and timely determination of all issues presented to the
Board.
2.107
Waiver of Rules
In order to prevent unnecessary hardship or delay, in
order to prevent injustice, or for other good cause, the Board may
waive the application of any rule upon such conditions as it may
require, unless precluded by the rule, itself, or by statute.
2.108 Severability
In the event that any of these rules is found by a
court of competent jurisdication to be illegal or void, the remainder
shall be deemed unaffected and shall continue in full force and
effect.
2.109
Repeal of Prior Rules
Rules of practice and any amendments or additions
thereto previously adopted by the Board are hereby repealed, except
that with respect to any proceeding pending on the effective date
hereof, the Board may apply any provision of such prior rules where
the failure to do so would work an injustice or substantial
inconvenience.
2.200 Procedures Generally
Applicable.
2.201
Practice Before the Board
(A)
Notice of appearance. Attorneys shall file a written notice of
appearance with respect to any matter in which they are representing
a party. Except in the case of a consumer filing a consumer
complaint, pro se representatives shall likewise file a notice of
appearance. Except as otherwise provided by law, a party whose
attorney has failed to comply with this requirement, or a party
appearing by a pro se representative who has failed to comply with
the requirements of this rule, shall not be entitled to notice or
service of any document in connection with such matter, whether such
notice or service is required to be made by the Board, by a party or
by a person seeking party status. A copy of each notice of appearance
shall, on the same day on which it is filed, be served by the party
filing the same upon all persons or parties on whose behalf a notice
of appearance has been filed. A list of such persons and parties will
be provided by the clerk upon request.
(B) Pro se appearances. For
purposes of these rules a person appearing pursuant to the authority
of this section shall be known as a pro se representative. In its
discretion, the Board may permit persons who are not attorneys to
appear before it as follows: a partnership may be represented by a
partner, and a corporation, cooperative or association may be
represented by an officer thereof or by an employee designated in
writing by an officer thereof. Such permission shall be given in all
proceedings unless, because of their factual or legal complexity or
because of the number of parties, the Board is of the opinion that
there is a substantial possibility that the participation of a pro se
representative will unnecessarily prolong such proceeding or will
result in inadequate exposition of factual or legal matters.
Notwithstanding the foregoing, any individual may be a pro se
representative in his or her own cause. This rule shall in no respect
relieve any person or party from the necessity of compliance with any
applicable rule, law, practice, procedure or other requirement.
Except as provided in Rule 2.201(D), anyone appearing as a pro se
representative shall be under all the obligations of an attorney
admitted to practice in this state with respect to the matter in
which such person appears.
(C) Attorneys admitted elsewhere.
An attorney admitted to practice and in good standing in any other
state or American or common law jurisdiction may appear in particular
matters with the permission of the board, provided that such attorney
must have co-counsel of record who is admitted to practice in
Vermont.
(D) Withdrawal
of appearance. An attorney who has appeared on behalf of a party may
withdraw only upon permission of the Board. A person appearing as a
pro se representative may withdraw without permission of the Board,
provided, that if other counsel has not appeared for such person,
such withdrawal shall be deemed to constitute withdrawal of that
person as a party.
(E) Ex
parte communications.
(1)
Prohibited communications. Unless required for the disposition of ex
parte matters authorized by law, upon the filing of a complaint,
petition, application or other filing which the Board has treated as
the same, no member, employee or agent of the Board may communicate,
directly or indirectly, in connection with any issue of fact, with
any party or any interested person, or, in connection with any issue
of law, with any party or any employee, agent or representative of
any party, except with the consent of all parties or upon notice and
opportunity for all parties to participate.
(2) Participation in decision.
Unless required for the disposition of ex parte matters authorized by
law, any member, employee or agent of the Board who has, in
connection with a pending, contested case, except with the consent of
all parties or upon notice and opportunity for all parties to
participate, communicated in connection with any issue of fact with
any party or interested person or, in connection with any issue of
law, with any party or any employee, agent or representative of any
party, shall not participate or advise in the decision, recommended
decision or Board review except as a witness or as counsel in public
proceedings.
(3) Improper
communications by parties. Any person or party who, directly or
through an employee, agent or representative, communicates or
attempts to communicate with any member, employee or agent of the
Board on any subject so as to cause, or with the intent to cause, the
disqualification of such member, employee or agent from participating
in any manner in any proceeding, may be disqualified from subsequent
participation in the proceeding, may be dismissed as a party to the
proceeding, may be held in contempt of the Board and/or may be deemed
to have waived any objection to the subsequent decision by the Board
with respect to any matter which is the subject of such
communication.
(4)
Exception Notwithstanding any provision of subparagraph (1) or (2),
above, members, employees and agents of the Board may communicate
with other members, employees or agents, provided that none of the
latter has engaged in communications prohibited by (A)
above.
2.202 Initiation of Proceedings
Except for cases initiated by the Board, a proceeding
is initiated by filing a complaint, petition or other application
with the Clerk at the Board's office during normal business hours. If
the named defendant or respondent is a utility, service of process
shall be completed by the Clerk who shall send a copy of the filing
which initiates the proceeding to such utility by certified mail,
return receipt requested. If the named defendant, respondent, or
other person or entity entitled to notice is not a utility, then the
party initiating the proceeding shall procure a summons from the
Clerk and shall cause the summons, together with the filing which
initiates the proceeding, to be served on such defendant or
respondent in the manner provided by the Vermont Rules of Civil
Procedure within thirty days after such filing.
2.203 Signing of Petitions, Motions
and Other Pleadings
Every petition, motion or other pleading shall be
signed by at least one attorney or pro se representative of record in
his individual name, whose address and telephone number shall be
stated. Except when otherwise specifically provided by rule or
statute, pleadings need not be verified or accompanied by affidavit.
The signature of an attorney or pro se representative constitutes a
certificate by him that the subscriber has read the pleading; that to
the best of such subscriber's knowledge, information and belief there
are good grounds to support it; and that it is not interposed for
delay.
2.204
Pleadings and Other Filings: Service, Filing, Form and Amendment
(A) Service, when required. In
addition to any other requirement imposed by law, every filing shall,
on the same day on which it is filed, be served by the party filing
the same upon every other party who has filed a notice of appearance,
unless the Board for good cause otherwise directs.
(B) Service, how made. Whenever
under these rules service is required to be made on a party, it shall
be made upon the attorney or pro se representative whose appearance
has been filed on behalf of such party. In all cases, service may be
made by mailing a copy of the filing, first class postage prepaid, to
the person whose notice of appearance is on file; but service may
also be made by personal delivery or by any other means authorized by
the person entitled to service.
(C) Filing, manner and
significance. Filing shall be accomplished by delivery to the clerk
at the office of the Board or by delivery to the Board during the
course of a hearing. Regardless of the method of delivery employed,
filing occurs only upon receipt by the clerk or the Board, as the
case may be. Such filing shall constitute a representation by the
attorney or pro se representative signing the same that a copy
thereof has been or will be served on the same day on which it is
filed upon every other party on whose behalf a notice of appearance
has been filed.
(D)
Number of copies. Except as provided herein, or as otherwise ordered
by the Board, all materials required to be filed shall require an
original and six copies of each document. The exceptions to this rule
are as follows:
Rule 2.205 (Statement Regarding Persons Entitled to
Notice) - Original plus one copy.
Rule 2.214 (Discovery
Responses) - One copy only.
Rule 2.302 (Consumer
Complaints) - Original only.
Rule 2.401 (Tariffs) -
Original plus nine copies.
Rule 2.403 (Petition for
Declaratory Ruling) - Original plus five copies.
Rule
2.404 (Petition for Adoption of Rules) - Original plus five
copies.
(E) Form
of Filings Generally. Except as provided in Rule 2. 204(F), all
filings shall be typewritten on paper 8 1/2" x 11" in size. All
filings shall be endorsed in the upper right hand corner with the
name and docket number of the case, the page numbering of the filing
and the date upon which it was prepared. Page numbering shall show
both the number of the particular page and the total number of pages
comprising the filing. Filings shall be headed by a descriptive
title. The Board or the clerk may refuse to accept for filing or,
after filing, may at any time reject any filing which fails to
conform to the requirements of this rule, provided, that if no
substantial prejudice will occur to any other party, the filing party
shall be afforded a reasonable opportunity to cure the defect, and
such cure, if made, shall be deemed to relate to the original date of
filing.
(F) Special rules
for certain exhibits. Exhibits need not comply with the typewriting
or size requirement of Rule 2.204(E) when their purpose or content
makes it impracticable to do so, but in all cases where it is not
manifestly impracticable to do so, exhibits shall be so designed that
they can be folded to a size of 8 1/2" x 11". The identity and page
number of any exhibit which measures, or which is folded to measure 8
1/2" x 11", shall appear in the upper right hand corner when the
exhibit is positioned with the 8 1/2" side as its top and bottom. The
identification and page number shall be set out horizontally when the
exhibit is positioned in the manner described in the preceding
sentence. The Board or the clerk may refuse to accept for filing or,
after filing, may at any time reject any exhibit which fails to
conform to the requirements of this rule, provided, that if no
substantial prejudice will occur to any other party, the filing party
shall be afforded a reasonable opportunity to cure the defect, and
such cure, if made, shall be deemed to relate to the original date of
filing.
(G) Amendments.
(1) In general.
Proposed amendments to any filing may be made at any
time. If unobjected to by any party within ten days of filing or at
the commencement of any hearing in which the amended matter is at
issue, whichever is earlier, such amendments shall be deemed
effective, except that the Board may at any time dismiss any proposed
amendments which it finds to have the effect of unreasonably delaying
any proceeding or unreasonably adversely affecting the rights of any
party. Where objection is made, amendments shall not be allowed
unless the Board finds (a) that they will not unreasonably delay any
proceeding or unreasonably adversely affect the rights of any party
and (b) that the requirements of subsection (2), if applicable, are
satisfied. The Board may condition the acceptance of any amendment as
justice may require. An amendment which is allowed over objection
shall be deemed effective as of the date it is approved, unless for
good cause, the Board orders that it shall be effective as of a
different date. Proposed amendments shall be clearly identified as
such and shall clearly indicate the changes they effect. In the event
an amendment makes a substantial change in a filing, the Board may
order such additional notice to other parties and the public as
justice may require.
(2) Rate Filings. No party may
amend, supplement or alter an existing filing or substantially revise
the proof in support of such filing in order to increase, decrease or
substantiate a pending rate request unless, upon hearing, it is
demonstrated that such a change in filing or proof is necessary for
the purpose of providing adequate and efficient service or for the
purpose of avoiding the implementation of rates which exceed a level
which is just and reasonable. A change in a filing or in the proof in
support thereof shall be deemed to be necessary for the purpose of
providing adequate service if the costs or other circumstances
reflected therein occurred or were imposed or were incurred prior to
such change and/or if such costs or circumstances will be operative
or in effect during all of the period within which the rates to be
based thereon will be in effect; provided, that the Board may
disallow any such change if the costs or other circumstances
reflected therein were known to or, by the exercise of reasonable
diligence could have been known to, the party filing the same
substantially prior to such filing.
(H) Custody. Once it has been
filed, any filing shall remain in the custody of the Board until
other lawful disposition shall have been made at the conclusion of
the case or otherwise.
2.205 Notice to Other Persons or
Parties
(A) Statement regarding
persons entitled to notice.
At the commencement of any proceeding, the party
initiating the same shall file a statement identifying by name and
address each person, party or other entity to whom or to which the
Board or the Clerk is required to give notice of such
proceeding.
(B)
Orders of notice. The Board may require any party who seeks the
granting or denial of any form of relief to file a proposed order of
notice.
(C) Expenses. The
expense of furnishing notice shall be borne by the party on whose
behalf or for whose benefit such notice is given.
2.206 Motions
Motions not made during the hearing shall be in
writing and, if they raise a substantial issue of law, shall be
accompanied by a brief or memorandum of law. Motions made during a
hearing may be required to be put in writing and supported by a brief
or memorandum of law within such period as the Board may direct. The
Board may decline to consider a motion not made within a reasonable
time after the issue first arises with respect to the moving
party.
2.207 Time
The provisions of the Vermont Rules of Civil
Procedure, Rule 6(a) and 6(b) (Time - Computation and Enlargement)
shall apply in proceedings before the Board.
2.208 Defective Filings
Substantially defective or insufficient filings may
be rejected by the Board, provided, that if it will not unreasonably
delay any proceeding nor unreasonably adversely affect the rights of
any party, the Board shall allow a reasonable opportunity to a party
to cure any defect or insufficiency. A filing which is found to be
defective or insufficient shall not be deemed to have been cured
until the date on which the last document is filed which removes the
defect or makes the filing complete. A filing is substantially
insufficient if, inter alia, it fails to include all material
information required by statute or rule.
2.209 Intervention
(A) Intervention as of right. Upon
timely application, a person shall be permitted to intervene in any
proceeding (1) when a statute confers an unconditional right to
intervene; (2) when a statute confers a conditional right to
intervene and the condition or conditions are satisfied; or (3) when
the applicant demonstrates a substantial interest which may be
adversely affected by the outcome of the proceeding, where the
proceeding affords the exclusive means by which the applicant can
protect that interest and where the applicant's interest is not
adequately represented by existing parties.
(B) Permissive intervention. Upon
timely application, a person may, in the discretion of the Board, be
permitted to intervene in any proceeding when the applicant
demonstrates a substantial interest which may be affected by the
outcome of the proceeding. In exercising its discretion in this
paragraph, the Board shall consider (1) whether the applicant's
interest will be adequately protected by other parties; (2) whether
alternative means exist by which the applicant's interest can be
protected; and (3) whether intervention will unduly delay the
proceeding or prejudice the interests of existing parties or of the
public.
(C) Conditions.
Where a party has been granted intervention, the Board may restrict
such party's participation to only those issues in which the party
has demonstrated an interest, may require such party to join with
other parties with respect to appearance by counsel, presentation of
evidence or other matters, or may otherwise limit such party's
participation, all as the interests of justice and economy of
adjudication require.
(D)
Procedure. An application to intervene shall be by motion made in
accordance with these rules. The motion shall be made within a
reasonable time after the right to intervene first accrues and shall
specifically state the manner in which the conditions of this rule
are satisfied.
2.210 Joinder
The provisions of the Vermont Rules of Civil
Procedure, Rules 19 (Joinder of Persons Needed for Just
Adjudication); 20 (Permissive Joinder of Parties); and 21 (Misjoinder
and Nonjoinder of Parties) shall apply in proceedings before the
Board.
2.211
Consolidation of Hearings; Separate Hearings
The provisions of the Vermont Rules of Civil
Procedure, Rule 42 (Consolidation; Separate Trials) shall apply in
proceedings before the Board.
2.212 Prehearing Conferences
In any proceeding, the Board may, and in any rate
case, the Board shall direct the parties to appear before it for a
conference to consider the following matters:
(A) the simplification of the
issues;
(B) the necessity
or desirability of amendments to any filing;
(C) the possibility of obtaining
admissions of fact and of documents which will avoid unnecessary
proof;
(D) the limitation
of the number of expert witnesses;
(E) such other matters as may aid
in the disposition of the case.
The Board shall make an order which recites the
action taken at the conference, including any agreements made by the
parties. When entered, such order controls the subsequent course of
the proceeding unless later modified.
2.213 Prefiled Testimony
(A) Direct case. Within such time
as may be directed by the Board, each party shall file the direct
testimony and exhibits of each witness it proposes to call in support
of its direct case.
(B)
Rebuttal case. In its discretion, the Board may direct any party to
file the testimony and exhibits of each witness it proposes to call
in rebuttal of the case of any other party.
(C) Form of prefiled testimony.
Prefiled testimony shall be in question and answer form. Its form and
content shall be such as would entitle the same oral testimony to be
admitted in proceedings before the Board. Such testimony shall be
typed and double spaced. Line numbers shall be placed in the left
hand margin of each page. The prefiled testimony of each witness
shall be preceded by a brief statement, set forth on a separate page,
containing a narrative summary of the testimony and exhibits referred
to in such testimony. The narrative shall not be admitted as
evidence.
2.214 Discovery
(A) In general. The provisions of
Vermont Rules of Civil Procedure, Rules 26 (General Provisions
Governing Discovery), 27 (Discovery Before Action Or Pending Appeal),
28 (Persons Before Whom Depositions May Be Taken), 29 (Stipulations
Regarding Discovery Procedure), 30 (Depositions Upon Oral
Examination), 31 (Depositions Upon Written Questions), 32 (Use of
Depositions In Court proceedings), 33 (Interrogatories To Parties),
34 (Production of Documents And Things And Entry Upon Land For
Inspection And Other Purposes), 36 (Requests For Admission) and 37
(Failure To Make Discovery: Sanctions) shall apply in proceedings
before the Board. The availability of these procedures shall not
limit the availability of any other means of discovery provided by
statute or otherwise.
(B)
Discovery by the Board. The procedures enumerated in 2.214(A) may be
used by the Board or its members, agents or employees, but the
availability of such procedures shall in no way limit the authority
of the Board, its members, agents or employees, including but not
limited to the authority to inquire into and examine any matter
within the jurisdiction of the Board, to examine books, accounts and
papers of any person or entity subject to the Board's jurisdiction or
to enter and examine the property of any person or entity subject to
the Board's jurisdiction.
2.215 Conduct of Hearings
(A) Board witnesses. In its
discretion, the Board may call witnesses to testify as to any matter
in issue in any proceeding. Except as required to establish the
subject matter and scheduling of the testimony to be offered, the
Board shall not communicate with such witnesses unless it is done in
open hearing or upon notice and opportunity for all parties to
participate.
(B)
Examination of witnesses by Board and staff. Any member of the Board,
and any member of its staff, may examine witnesses who testify in any
proceeding.
(C) Rulings
by hearing examiners. When a matter has been assigned to a hearing
examiner, such examiner may make rulings of law on procedural
matters, on the admission or exclusion of evidence, and on any other
matters necessary to conclude proceedings before the examiner. After
the hearing examiner has issued and served a proposal for decision, a
party may bring such rulings to the Board for review by requesting,
pursuant to
3 V.S.A. §
811, the opportunity to file
exceptions and to present briefs and oral argument.
2.216 Evidence
(A) General rule. Evidentiary
matters are governed by
30 V.S.A. §
810. In addition, except as to
matters covered by the succeeding paragraphs of this rule, the
provisions of the Vermont Rules of Civil Procedure, Rules 43
(Evidence), 44 (Proof of Official Record) and 44.1 (Determination of
Foreign Law) shall apply in proceedings before the Board.
(B) Use of exhibits. Where evidence
to be presented consists of tabulations or figures so numerous as to
make oral presentation impracticable, it shall be presented in
exhibit form. Such exhibits shall be summarized and explained in
testimony.
(C) Procedure
with respect to prefiled testimony and exhibits. Prefiled testimony,
if admitted into evidence, shall be included in the transcript.
Objections to the admissibility of prefiled testimony or exhibits
shall be filed in writing not more than thirty days after such
evidence has been prefiled or five days before the date on which such
evidence is to be offered, whichever is earlier.
(D) Views and inspections. Upon
notice to the parties, the Board may, either upon its own motion or
upon the request of a party, view or inspect any property which is
the subject of or is related to the subject of any proceeding. A view
or inspection may be made before, during or after the
hearing.
2.217
Objections and Exceptions
The provisions of the Vermont Rules of Civil
Procedure, Rule 46 (Exceptions Unnecessary) shall apply in
proceedings before the Board.
2.218 Subpoenas
The provisions of the Vermont Rules of Civil
Procedure, Rule 45 (Subpoena) shall apply in proceedings before the
Board.
2.219
Summary Judgment
The provisions of the Vermont Rules of Civil
Procedure, Rule 56 (Summary Judgment) shall apply in proceedings
before the Board.
2.220 Harmless Error
The provisions of the Vermont Rules of Civil
Procedure, Rule 61 (Harmless Error) shall apply in proceedings before
the Board.
2.221
Relief from Order
The provisions of the Vermont Rules of Civil
Procedure, Rule 60 (Relief From Judgment Or Order) shall apply in
proceedings before the Board.
2.222 Proposed Findings of Fact
In any case the Board may require each party to file
proposed findings of fact. Such proposed findings shall conform to
the requirements for findings for the Superior Court. Each proposed
finding shall deal concisely with a single fact or with a group of
facts so interrelated that they cannot reasonably be treated
separately. Proposed findings shall be consecutively numbered and
shall be logical sequence. Where the party claims to have established
more than one ultimate fact, proposed findings shall be arranged into
separate groups, appropriately identified as to subject matter. Each
proposed finding shall contain a citation or citations to the
specific part or parts of the record containing the evidence upon
which the proposed finding is based.
2.223 Briefs
Briefs shall address each issue of law which a party
desires the Board to consider. Whenever a brief addresses more than
one issue, it shall be suitably divided into sections which
separately address each issue. Such a brief shall contain,
immediately following the cover page, a detailed table of
contents.
2.224
Sanctions
An attorney or pro se representative who fails, after
having been requested by the Board to do so, to submit proposed
findings or briefs, or who manifestly fails to conform to the
requirements respecting findings or briefs as specified in Rules
2.222 and 2. 223, may be suspended from further participation in the
proceeding or, for such period of time as the Board finds to be just,
from participation in other proceedings. In addition, or in the
alternative, with respect to any fact as to which a party has
manifestly failed to conform to the requirements of Rule 2. 220, such
party may be deemed to have withdrawn its offers and claims of proof
and to have waived its right to a finding by the Board regarding such
fact; and with respect to any issue of law as to which a party has
manifestly failed to conform to the requirements of Rule 2. 223, such
party may be deemed to have waived any claims of law with respect to
such issue, and the claims of opposing parties with respect thereto
may be deemed to be the law of the case.
2.300 Consumer
Complaints.
2.301
Definition
A consumer complaint is a complaint filed by any
person (whether an individual, corporation, association, partnership
or other entity) receiving service or entitled to receive service
from a utility regulated by the Board seeking a refund of charges
and/or an order requiring a utility to comply in a reasonable manner
with any applicable tariff, statute, rule or order of the
Board.
2.302 Form
and Content
A consumer complaint shall set forth in writing a
short and plain statement of facts showing that the complainant is
entitled to relief. The statement shall be signed by the consumer.
Notwithstanding the foregoing, the Board may in its discretion treat
any written communication to it concerning a matter within its
jurisdiction to be a claim for relief.
2.303 Acknowledgment and
Distribution of Complaints
The Board shall acknowledge receipt of all written
complaints and shall send a copy thereof to the affected
utility.
2.304
Referral to the Department of Public Service
In its discretion, the Board may refer any complaint
to the Department of Public Service and request the Department to
attempt to resolve the dispute. If the complaint is not thus
referred, if the Department of Public Service refuses to accept the
referral, or if the Department is unable to resolve the matter, then
the Board, if it find, assuming, that the allegations of the
complaint are true, that there is a probability of a violation of
tariffs, statutes, rules or other orders of the Board, shall set the
complaint for a hearing. If, assuming that the allegations of the
complaint are true, there is no probability of such a violation, it
shall dismiss the complaint.
2.305 Hearings on Consumer
Complaints
In setting a case for hearing, the Board shall assign
a docket number and shall specifically set forth the issues to be
resolved, which issues, unless the requirements of justice dictate
otherwise, shall be the only issues controverted at the hearing. If
issues in addition to those so specified are to be heard, the parties
shall be afforded a reasonable time to prepare and respond. The
hearing shall be assigned by the clerk for the earliest practicable
date.
2.306
Representation by Persons Not Admitted to Practice
Notwithstanding the provisions of Rule 2.201, the
Board may in its discretion permit consumers to be represented in
consumer complaint proceedings by persons who are not admitted to the
practice of law, provided that such representatives shall demonstrate
a sufficient familiarity with these rules and with all substantive
and procedural provisions of law applicable to such proceedings.
Except for the requirement of admission to practice, such
representatives shall comply with all rules, laws, practices,
procedures and other requirements applicable to proceedings before
the Board.
2.400
Matters Other Than Consumer Complaints.
2.401 Tariff Filings
(A) General. Tariff filings,
including amendments to existing tariffs, shall be accompanied by a
concise, narrative description of their nature and effect, stated in
terminology which is comprehensible to the general public.
(B) Amendments. Except where
substantially the whole of a separately identified section of a
tariff is affected, an amendment to an existing tariff shall be
accompanied by a separate explanatory version which shows deleted
material in brackets and broken underline and new material in solid
underline.
(C) New
services. Where a tariff filing covers a new service, or a
modification of an existing service, estimates of revenues and costs
attributable to such service for each of the three years succeeding
the introduction of the new or modified service. Schedules containing
the information called for by this provision shall be accompanied by
a statement of the name of the person or persons responsible for
their preparation, together with a description of any underlying
documentation, which documentation shall be available through
discovery immediately after the filing.
2.402 Rate Proceedings
(A) Justification for change in
rates. In order to enable the Board to determine whether new rates
proposed by any utility should be further investigated or suspended,
all rate filings shall contain complete and substantial justification
for the proposed change, including the following:
(1) detailed calculation of cost of
service;
(2) detailed
calculation of cost of capital;
(3) rate base calculation;
(4) the effect of the
filing on annual operating revenues;
(5) projected construction
expenditures by category for each of the following two years;
(6) for electric
utilities, a detailed statement of purchased power and production
costs (with fuel costs separately stated) by source for the 12 months
prior to the filing and a similar statement of projected purchased
power and production costs by source for the 12 months succeeding the
filing; such costs for both periods shall be shown net of sales to
other utilities or, in the alternative, revenues from such sales
shall be separately stated.
(B) Changes from previous order.
Where a request for a change in rates proposes or utilizes any change
in the ratemaking methodology or principles approved or utilized by
the Board in the most recent rate order affecting the same utility,
such change shall be clearly identified, and a statement of the
reasons for such change shall be given.
(C) Exhibits and other information.
A utility whose rates are suspended shall, within thirty days from
the date of the suspension order, file ten copies of all exhibits it
intends to use in the hearing thereon, together with the names of
witnesses it intends to call in its direct case, and a short
statement of the purposes of the testimony of each witness. In the
case of a municipality or cooperative which has filed a notice of
change in rates, if the Board gives notice that it intends to
investigate such change, then the municipality or cooperative shall
file similar exhibits, names of witnesses and a statement of the
purpose of their testimony within thirty days of the giving of such
notice. Except in the discretion of the Board, a utility shall not be
permitted to introduce into evidence in its direct case exhibits
which are not filed in accordance with this rule. This provision
shall not be deemed to constitute a limitation on the Board's
authority to require the prefiling of direct testimony in any case at
such time as the Board may prescribe.
2.403 Petitions for Declaratory
Rulings
Pursuant to
3
V.S.A. §
808, an interested
person may petition the Board for a declaratory ruling as to the
applicability of any statutory provision or of any rule or order of
the Board. The petition shall identify the statute, rule or order
involved, shall include a proposed order of notice and shall be
accompanied by a brief which conforms to the requirements of Rule
2.223.
2.404
Petitions for Adoption of Rules
Pursuant to
3
V.S.A. §
806, an interested
person may petition the Board requesting the promulgation, amendment
or repeal of a rule. The petition shall describe the action
requested, shall state the reasons for the request and shall include
a proposed order of notice.
2.405 Request for Tariff
Investigation
Any interested person or entity may request that
the Board initiate an investigation pursuant to
30 V.S.A. §
227 into the justness and
reasonableness of a utility's tariffs. Whether or not to undertake
such an investigation shall be within the Board's discretion.
2.406 Injunctions
(A) Definitions.
(1) Temporary restraining order: an
injunctive remedy which is issued either ex parte or under
circumstances where the respondent has not been afforded an adequate
opportunity to present its defense at a hearing held upon such notice
as is otherwise required by law.
(2) Preliminary injunction: an
injunctive remedy issued after a hearing held upon legal notice but
where the proceedings have not allowed the parties adequate
opportunity to avail themselves of all procedures provided for by
these rules and by all other provisions of law. A preliminary
injunction cannot remain in effect beyond the conclusion of the
proceeding in which it is issued.
(3) Permanent injunction: an
injunctive remedy issued as final relief after a hearing held upon
legal notice and where the proceedings have allowed the parties
adequate opportunity to avail themselves of all procedures provided
for by these rules and by all other provision of law.
(B) Particular
requirements for temporary restraining orders; examination of
witnesses by the Board A petition for a temporary restraining order
must be verified or must be accompanied by affidavits attesting to
all of its factual allegations. The Board may require any facts
alleged in the affidavits or verified petition to be presented in
oral testimony and may examine any witness testifying to such facts
as to any matter which is relevant to the subject matter of the
proceeding. The petitioner shall deliver a copy of the petition to
the respondent before filing or, if such delivery would require delay
which might cause irreparable harm, as soon thereafter as possible.
If actual delivery to the respondent has not been made prior to
filing, the petitioner shall notify the respondent or its attorney by
telephone or by other means at the earliest possible time thereafter.
A temporary restraining order may be issued only where it clearly
appears from specific facts shown by the affidavits or the verified
petition, and by testimony if required by the Board, that
substantial, immediate and irreparable injury, loss or damage, or
danger to health or safety, will result to the petitioner before a
hearing can be held upon proper notice.
(C) Further proceedings after
issuance of a temporary restraining order. A petition for a temporary
restraining order, whether or not it is so designated, shall also
constitute a petition for a preliminary injunction and/or a permanent
injunction. Unless precluded by the existing scheduling of other
matters, or unless the respondent does not object to longer
scheduling, a hearing upon such preliminary or permanent injunction
shall be held within forty-five days and a decision rendered within
sixty days. Wherever possible, the Board shall attempt to make a
final disposition of the matter, but if the proceedings do not allow
the parties adequate opportunity to avail themselves of all
procedures provided for by these rules and by all other provisions of
law, then only a preliminary injunction may be issued. If a temporary
restraining order has previously been issued, it shall continue in
force until a decision is rendered on the preliminary injunction or
the permanent injunction, as the case may be, unless it is dissolved
by its terms or by further order of the Board.
(D) Particular requirements for
preliminary injunctions; further proceedings after issuance.
An application for a preliminary injunction, unless
made in consequence of an application for a temporary restraining
order as provided above, shall be made by motion in connection with a
petition for a permanent injunction. No preliminary injunction may
issue unless the petitioner establishes that the irreparable injury
which will be caused to it if a preliminary injunction is denied,
discounted by the probability that the respondent will prevail in the
proceedings on the permanent injunction, will be greater than any
injury which the granting of the preliminary injunction will cause to
the respondent. If a preliminary injunction is issued, the Board
shall schedule such further proceedings as may be required for the
permanent injunction; and the preliminary injunction shall continue
in force until a decision is rendered on such permanent injunction
unless it is dissolved by its own terms or by further order of the
Board. Unless the Board otherwise orders, the record made in
connection with the preliminary injunction shall also constitute part
of the record in the proceedings on the permanent injunction.
(E) Other matters.
(1) Conditions. The Board shall
condition the issuance of a temporary restraining order or a
preliminary injunction with such terms as justice and equity may
require, including the giving of adequate security in favor of the
respondent.
(2)
Severence. In its discretion, the Board may order the severence of
proceedings on a request for injunctive relief from proceedings for
other relief.
(3) Motion
to dissolve. A motion to dissolve a temporary restraining order or a
preliminary injunction may be made at any time. The motion shall
state why the further proceedings scheduled on the matter are
insufficient to protect the rights and interests of the moving
party.
(4) Hearing
examiners. Unless the Board determines that it will expedite the
resolution of the matter or will otherwise further the ends of
justice, no application for a temporary restraining order will be
heard by a hearing examiner.
(5) Form of injunctions. A
temporary restraining order, preliminary injunction or permanent
injunction shall state the date and hour of its issuance and shall be
accompanied by findings of fact upon all of the issues specified or
referred to in this rule.
2.407 Forms for Certain Purposes
The following forms, which are available on request,
must be used for submissions to the Board: annual reports, gross
revenue tax reports, property valuation reports, accident reports,
interruption of electric service reports, disconnection of service
reports and cable TV applications.
Appendix. Rules of Civil Procedure Incorporated by
Reference.
These Vermont Rules of Civil Procedure can be
obtained at the following website:
http://www.vermontjudiciary.org/
RULE 6. TIME.
RULE 19. JOINDER OF
PERSONS NEEDED FOR JUST ADJUDICATION
RULE 20. PERMISSIVE
JOINDER OF PARTIES
RULE 21. MISJOINDER AND NONJOINDER OF
PARTIES
RULE 26. GENERAL PROVISIONS GOVERNING
DISCOVERY
RULE 27. DISCOVERY BEFORE ACTION OR PENDING
APPEAL
RULE 28. PERSONS BEFORE WHOM DEPOSITIONS MAY BE
TAKEN
RULE 29. STIPULATIONS REGARDING DISCOVERY
PROCEDURE
RULE 30. DEPOSITIONS UPON ORAL
EXAMINATION
RULE 31. DEPOSITIONS UPON WRITTEN
QUESTIONS
RULE 32. USE OF DEPOSITIONS IN COURT
PROCEEDINGS
RULE 33. INTERROGATORIES TO
PARTIS
RULE 34. PRODUCTION OF DOCUMENTS AND THINGS AND
ENTRY UPON LAND FOR INSPECTION AND OTHER PURPOSES
RULE
36. REQUESTS FOR ADMISSION
RULE 37. FAILURE TO MAKE
DISCOVERY SANCTIONS
RULE 42. CONSOLIDATION; SEPARATE
TRIALS
RULE 44. PROOF OF OFFICIAL RECORD
RULE
44.1. DETERMINATION OF FOREIGN LAW
RULE 45.
SUBPOENA
RULE 46. EXCEPTIONS UNNECESSARY
RULE
56. SUMMARY JUDGMENT
RULE 60. RELIEF FROM JUDGMENT OR
ORDER
RULE 61. HARMLESS ERROR
